3   1822  00002  2756 


:VN1> 


•w 

13 


UNIVERSITY  OF  CALIFORNIA,  SAN  OIEGO 


3  1822  00002  2756 


<~ 


Central  University  Library 

University  of  California,  San  Diego 
Please  Note:  This  item  is  subject  to  recall. 

Date  Due 


JUN   06  1995 
MAR  2  0  1995 


Cl  39  (7/93) 


UCSD  Lib. 


WOMAN 

AND 

NEW  YORK  LAW 


Woman  and  the  Law  series  of  digests,  published  in  trust 
for  the  women  of  the  United  States  by  the  authority  of 
the  General  Federation  of  Women's  Clubs. 

EDITED  BY 

GEORGE  JAMES  BAYLES,  L.L.B.,  Ph.D. 

ASSOCIATE  IK  THB  FACTTLTT  OF  POLITICAL  SCIEKCB, 
COLUMBIA  UNIVEBSITT 


WOMAN 

AND 

NEW  YORK  LAW 


THE   LAW   PRESS 

00  MURRAY  STREET 

New  York 

1911 


Copyright,  1911,  t>y 
GIOROB  JAMES  BATLH 


TO  MY  MOTHER 

A  WOMAN  OF  NEW  YORK, 

THIS  WORK  IS 
LOVINGLY   DEDICATED 


"  And  therefore  women  and  children  must  be  trained  by 
education  with  an  eye  to  the  state,  if  the  virtues  of  either  of 
them  are  supposed  to  make  any  difference  in  the  virtues  of 
the  state.  And  they  must  make  a  difference:  for  the  children 
grow  up  to  be  citizens  and  half  of  the  persons  in  the  state 
are  women." — ARISTOTLE. 


FOEEWOBD 

THE  need  of  American  women  for  some 
convenient  means  of  securing  a  defi- 
nite knowledge  of  their  legal  rights  and 
obligations  has  been  recognized  by  the 
General  Federation  of  Women's  Clubs,  the 
most  representative  body  of  educated 
American  women.  At  the  convention  of 
the  Federation  held  in  the  city  of  Cincin- 
nati, Ohio,  in  May,  1910,  the  following  pre- 
amble and  resolutions  were  unanimously 
adopted: 

As  it  is  evident: 

FIRST:  That  the  number  of  American 
women  who  are  in  the  possession  of 
property  and  who  are  called  upon 
to  have  a  definite  knowledge  of 
their  own  affairs  is  rapidly  increas- 
ing, and 

SECOND  :  That  it  is  of  service  to  every 
woman  that  she  have  some  definite 
knowledge  of  her  legal  rights  and 
obligations,  and 

THIRD  :  That  the  legal  rights  and  obli- 
gations of  the  women  of  the  United 
States  are  now  largely  matters  of 
statute  law  which  varies  in  the  sev- 
eral States,  and 

vli 


viii  FOREWORD 

FOURTH:  That  a  presentation  of  the 
law  defining  the  legal  rights  and 
obligations  of  American  women 
should  be  made  for  each  State  sep- 
arately; 

Therefore  be  it  Resolved: 

FIRST:  That  the  General  Federation 
of  Women's  Clubs,  in  convention 
assembled,  for  the  service  that 
would  be  rendered  to  the  women  of 
the  United  States,  would  welcome 
an  effort  for  a  systematic  presenta- 
tion of  the  law  relating  to  women 
in  a  series  of  State  digests; 

SECOND:  That  to  further  this  end  the 
President  of  the  General  Federation 
is  hereby  authorized  to  appoint  a 
special  committee  representing  the 
several  sections  of  the  United  States 
with  power  to  aid  such  an  under- 
taking without  incurring  financial 
obligations  for  the  General  Federa- 
tion; 

THIRD:  That  the  Presidents  of  the 
several  State  Federations  be  re- 
quested to  co-operate  with  the  said 
committee  and  also  to  bring  the 
matter  before  the  authorities  of 
their  State  Federations  to  the  end 


FOREWOKD  ix 

that  a  series  of  State  digests  pre- 
senting the  law  relating  to  women 
be  published  under  the  patronage 
of  the  several  State  Federations. 

Under  the  authority  of  these  resolutions 
the  President  of  the  General  Federation, 
Mrs.  Philip  North  Moore,  of  St.  Louis,  Mo., 
appointed  this  special  committee  as  fol- 
lows: Miss  Anne  Rhodes,  of  New  York, 
Chairman;  Mrs.  C.  B.  Alexander,  of  New 
Jersey;  Mrs.  F.  G.  Mills,  of  Michigan; 
Mrs.  Whitmore,  of  Colorado;  Mrs.  F.  D. 
Everitt,  of  Illinois,  and  Mrs.  W.  R.  Chiv- 
vis,  of  Missouri. 

Upon  the  motion  of  Miss  Rhodes,  the 
New  York  City  Federation  of  Women's 
Clubs,  at  its  convention  in  February,  1911, 
passed  the  following  resolution: 

"Resolved,  That  the  New  York  City 
Federation  hereby  endorses  the  action  of 
the  General  Federation  of  Women's  Clubs 
at  its  last  convention  aiming  to  secure  the 
publication  of  a  series  of  digests  of  the 
law  in  the  various  States  in  its  relation  to 
women; 

"  That  it  will  co-operate  with  the  Gen- 
eral Federation  committee  having  the 
matter  in  hand  in  any  way  that  shall  not 
entail  financial  responsibility; 


x  FOKEWOKD 

"  That  the  City  Federation  hereby 
recommends  to  its  members  to  own  and 
study  the  volume  when  it  shall  appear." 

The  Woman  and  the  Law  series  of 
digests  has  been  planned  by  the  editor  to 
meet  the  requirements  of  these  resolutions. 
The  plan  of  publication  has  received  the 
approval  of  this  special  committee,  and 
therefore  this  series  has  the  official  sanc- 
tion and  endorsement  of  the  General  Fed- 
eration of  Women's  Clubs. 

It  is  proposed  that  the  plates  and  copy- 
rights of  this  series  shall  eventually  be- 
come the  property  of  trustees  representing 
the  General  Federation  who  shall  continue 
the  work  until  the  series  is  complete  in 
forty-six  digests,  or  one  for  each  State  of 
the  Union, 


INTRODUCTION 

AMERICAN  women  are  leading  the 
women  of  the  world  in  their  intelli- 
gent interest  in  their  own  condition.  But 
the  proper  basis  for  an  intelligent  interest 
in  any  subject  is  some  definite  knowledge 
of  existing  conditions.  To  make  it  con- 
venient for  the  women  of  the  State  of  New 
York  to  gain  some  definite  knowledge  of 
New  York  law  as  it  relates  to  them  is  the 
object  of  this  work. 

There  is  nothing  unwomanly  in  having 
some  definite  knowledge  of  the  law,  it  is 
only  common  sense  on  the  part  of  the 
women  of  affairs  at  the  present  time.  This 
is  no  attempt  to  make  "  every  woman  her 
own  lawyer,"  but  it  is  an  attempt  to  have 
women  understand  what  their  lawyers  say 
to  them  and  something  about  the  legal 
system  under  which  they  live. 

This  digest  is  divided  into  four  parts: 
first,  the  domestic  relations  of  women; 
second,  the  property  relations  of  women; 
third,  the  public  relations  of  women,  and 
fourth,  the  protection  and  correction  of 
women.  The  text  of  the  statute  law  is 
used  almost  entirely,  and  decisions  of  the 
courts  interpreting  the  statutes  are  used 
to  a  considerable  extent.  Much  of  the  law 
relating  to  children  is  included  because  it 

xi 


xii  INTKODUCTION 

is  believed  that  it  will  be  of  great  interest 
to  women. 

The  women  who  will  read  this  book 
happily  will  not  come  in  contact  with  the 
penal  and  criminal  law,  but  their  less  for- 
tunate sisters  will,  so  they  should  under- 
stand how  the  law  is  designed  to  protect 
and  correct  women.  If  some  of  the  women 
who  will  use  this  digest  desire  to  go  more 
deeply  into  any  particular  subject  as,  for 
example,  the  domestic  and  property  rela- 
tions of  women,  they  can  do  so  by  going 
to  any  law  library  and  consulting  the 
digests  of  the  decisions  of  the  courts. 
There  they  will  find  the  principles  of  the 
common  and  statute  law  and  of  equity  ap- 
plied to  a  vast  number  of  circumstances 
in  the  lives  of  men  and  women. 

I  ask  the  women  who  read  this  book  to 
realize  that  the  law  is  no  dead  set  of 
ancient  rules  but  that  the  law  as  a  system 
is  a  living,  growing  process  of  society, 
ever  aiming  to  regulate  the  lives  of  men 
and  women  for  the  greatest  good  to  the 
greatest  number.  May  the  women  know 
their  law. 

GEORGE  JAMES  BAYLES, 
Editor  of  the  Woman  and  the  Law 
series  of  digests. 

COLUMBIA  UNIVERSITY, 
October,  1911. 


TABLE  OF  CONTENTS 


PART  I 
THE  DOMESTIC  KELATIONS  OF  WOMEN 

PAGE 

MARRIAGE 3 

The  essential  elements  of  a  valid  marriage     .  4 

The  contract  to  marry 5 

Breach  of  promise  to  marry 7 

The  prohibited  degrees  of  relationship     .      .  9 

Incestuous  and  void  marriages     ....  10 

Void  marriages  .      .     :.,    ;. 11 

Voidable  marriages 12 

Marriage  after  divorce  for  adultery     ...  14 

By  whom  a  marriage  must  be  solemnized       .  16 

Marriage,  how  solemnized 17 

Marriage  licenses 18 

Effect  of  marriage  of  parents  of  illegitimates  .  19 

Common  law  marriage 19 

Contracts  in  contemplation  of  marriage  .      .  20 

Liability  of  husband  for  ante-nuptial  debts   .  22 

Contracts  to  alter  or  dissolve  marriage     .      .  22 

Pardon  not  to  restore  marital  rights  ...  23 

ziii 


xiv  CONTENTS 

PAGE 

LIMITED  DIVORCE .     .  24 

For  what  causes  action  may  be  maintained     .  24 

Support  of  wife  and  children 25 

Judgment  for  separation  may  be  revoked     .  25 

ACTION  FOR  A  DIVORCE     .     .     .     ....  26 

In  what  cases  action  may  be  maintained  .      .  26 

When  divorce  denied,  although  adultery  proved  26 

Regulations  when  action  is  brought  by  wife  .  27 

When  action  is  brought  by  husband     ...  29 

THE  CUSTODY  AND  WAGES  OF  CHILDREN  .     .  30 

Habeas  corpus  for  child  detained  by  parent  .  30 

Payment  of  wages  to  minor;  when  valid     .  32 

THE  GUARDIANSHIP  OF  CHILDREN     ...  34 

Guardians  in  socage 34 

Appointment  of  guardians  by  parent  .  .  35 
Powers  and  duties  of  such  guardians  .  .  37 
Duties  and  liabilities  of  all  general  guardians  37 
Guardianship  of  married  women  ....  39 
Investment  of  trust  funds  by  guardian  .  .  39 
Guardianship  of  indigent  children  by  incor- 
porated orphan  asylums 40 

THE  ADOPTION  OF  CHILDREN       ....  42 

Whose  consent  is  necessary 43 

Requisites  for  voluntary  adoption     ...  44 

The  order 45 

The  effect  of  adoption 45 

Abrogation  of  voluntary  adoption     ...  47 


CONTENTS  xv 

PART  II 
THE  PROPERTY  RELATIONS  OF  WOMEN 

PAGE 

CERTAIN  RIGHTS  AND  LIABILITIES  OF  HUS- 
BAND AND  WIFE 51 

The  property  of  a  married  woman     .      .     .51 

The  legal  powers  of  a  married  woman     .      .  52 
Responsibility  of  married  women  for  acts  of 

agents 53 

Liability  for  torts  of  husband 54 

Liability  of  married  woman  on  promissory 

notes 55 

Contracts  of  married  woman  not  to  bind  hus- 
band   55 

Husband  and  wife  may  convey  to  each  other 

or  make  partition 58 

Insurance  of  husband's  life 59 

When  a  married  woman  is  a  party     .     .      .61 
Right  of  action  by  or  against  married  woman 

for  torts 61 

Compelling  transfer  of  trust  property     .      .  62 

Married  woman's  right  of  action  for  wages     .  62 

Right  of  husband  to  wife's  services     ...  63 

DOWER 65 

Dower  in  lands  exchanged 66 

Dower  in  lands  mortgaged  before  marriage     .  66 
Dower  in  lands  mortgaged  for  purchase  money  67 
Surplus    proceeds    of   sale   under    purchase- 
money  mortgages 67 


xvi  CONTENTS 

PAGE 

Widow  of  mortgagee  is  not  endowed     .      .      .67 

When  dower  is  barred  by  misconduct  ...  68 

When  dower  is  barred  by  jointure  ....  68 

When  dower  is  barred  by  pecuniary  provisions  68 
When  a  widow  is  to  elect  between  jointure 

and  dower       .     .     .     .     ....     .     .  69 

Her  election  between  devise  and  dower     .      .  69 

When  she  is  deemed  to  have  elected     ...  70 

When  provision  in  lieu  of  dower  is  forfeited  .  71 

Effects  of  the  acts  of  the  husband     ...  71 

A  widow's  quarantine 72 

A  divorced  woman  may  release  dower     .      .  72 

Married  woman  may  release  dower  by  attorney  73 

WILLS 74 

Manner  of  executing  a  will 75 

Witnesses  to  a  will  to  write  names  and  places 

of  residence                      .     , 75 

What  wills  may  be  proved 76 

Devise  or  bequest  to  certain  corporations  .      .  76 
Devise  or  bequest  to  certain  benevolent,  charit- 
able and  scientific  corporations  .  77 
Devise  or  bequest  to  certain  bar  associations, 

veterinary  associations  and  fire  corporations  77 

Child  born  after  making  a  will     ....  78 

Revocation  and  cancellation  of  written  wills  .  78 

Revocation  by  marriage  and  birth  of  issue     .  79 

Will  of  unmarried  woman 80 

Who  are  entitled  to  letters  of  administration  .  80 


CONTENTS  xvfi 

PAGE 

THE  DESCENT  AND  DISTRIBUTION  OF  PROP- 
ERTY       83 

The  general  rule  of  descent 83 

When  a  mother  inherits 83 

Brothers  and  sisters  of  father  and  mother  and 

their  descendants  and  grandparents  .  .  83 

Eelatives  of  husband  or  wife 85 

Distribution  of  personal  property  of  decedent  86 

The  estates  of  married  women  ....  91 
Action  against  husband  for  debts  of  deceased 

wife     .     .     .     .     .     .     ...     .     .  91 

Exemption  for  widow  and  children  ...  92 


PART  III 
THE  PUBLIC  RELATIONS  OF  WOMEN 

Citizen  women 97 

WOMAN  AND  THE  ELECTIVE  FRANCHISE  .     .98 

Under  the  village  law 98 

Woman  may  institute  proceeding  .     .     .     .     98 

Under  the  town  law 99 

When  women  are  qualified  to  vote     ...     99 

Under  the  education  law 99 

Election  and  qualifications  of  school  commis- 
sioners        100 

Husband  or  wife  as  witness 101 

Women  as  executors 101 

Women  as  trustees  .  ....  .  102 


xviii  CONTENTS 

PAGE 

Women  as  incorporators  and  directors  .  .  103 
Women  in  the  licensed  professions  .  .  .  103 

REGISTRATION  OF  NURSES  .     .    •»     .     .     .  104 

Who  may  practice  as  registered  nurses     .      .  104 

Board  of  examiners,  examination,  fees     .      .  105 

Waiver  of  examination      .     .     .     .     .     .  106 

Violations  of  this  article     ......  107 

PART  IV 

THE  PROTECTION  AND  CORRECTION 
OF  WOMEN 

PROTECTION  FROM  ILLITERACY     .     .     .     .111 

Instruction  required Ill 

Required  attendance  upon  instruction  .  .111 
The  unlawful  employment  of  children  .  .112 
No  exclusion  on  account  of  race  or  color  .  .  113 

EMPLOYMENT  OF  WOMEN  AND  CHILDREN  IN 
MERCANTILE  ESTABLISHMENTS  .     .     .     .114 

Application  of  article 114 

Hours  of  labor  of  minors  .      .     .      .     .     .114 

Employment  of  children .115 

Employment  certificate,  how  issued     .      .      .116 

Contents  of  certificate 121 

School  record,  what  to  contain     .      .     .     .121 

Summer  vacation  certificate 122 

Registry  of  children  employed  ....  123 
Wash-rooms  and  water-closets  .  .  126 


CONTENTS  xix 

PAGE 

Lunch-rooms 127 

Seats  for  women  in  mercantile  establishments  127 
Employment  of  women  and  children  in  base- 
ments     128 

Enforcement  of  article       ......  129 

Copy  of  article  to  be  posted 130 

BUREAU  OF  MERCANTILE  INSPECTION  :.  -.  131 
Mercantile  inspector  .  .  .  .  .  .  .131 

Deputies 131 

Prohibited  employment  of  children  in  street 

trades 131 

Prohibited  employment  of  women  and  children  131 
Accommodations  for  women  in  factories  .  .  134 

PROTECTION  or  HER  PERSON  AND  MORALS     .  136 

Protection  of  a  female  child 136 

Abduction 136 

Bigamy 137 

Exceptions 137 

Compelling  woman  to  marry 138 

No  conviction  on  certain  testimony  .  .  .  138 
Compulsory  prostitution  of  wife  .  .  .  .138 
Seduction  under  promise  of  marriage  .  .  138 
Compulsory  prostitution  of  women  .  .  .139 

ABORTION 141 

Definition  and  punishment  of  abortion     .     .  141 
Killing  of  child  in  attempting  miscarriage     .  141 
Selling  drugs  or  instruments  to  procure  a  mis- 
carriage       142 


xx  CONTENTS 

PAGE 

POLICE  MATRONS 143 

Police  station  houses  for  the  detention  of 
women 143 

Women  under  arrest  to  have  separate  accom- 
modations . 143 

Proceeding  in  case  of  arrest  of  women     .     .  144 

SUPPORT  OF  BASTARDS  ........  145 

Penalty  for  removing  mother  of  bastard ;  how 

supported  after  removal  .     .     .     .     .      .  145 

Mother  and  child  poor  persons;  proceedings 

against  county  or  town  from  which  she  was 

removed 145 

Mother  and  bastard ;  how  to  be  supported  .  146 
Mother  and  child  not  to  be  removed  without 

her  consent  .  .  -.  ••.  ,-.  .  .  •-.  .  .  147 
Overseers  to  notify  superintendents  of  cases 

of  bastardy;  when  county  is  chargeable  .  14? 
Duty  of  superintendents  to  provide  for  mother 

and  child :.  147 

Until  taken  care  of  by  superintendents,  to  be 

supported  by  overseers 147 

Overseers  of  towns  to  support  bastard  and 

mother,  whether  chargeable  or  not  .  .  .  148 
Moneys  received  by  overseers  from  parents  of 

bastard,  how  applied  and  accounted  for  .  148 
When  moneys  received  on  account  of  bastard 

chargeable  to  county,  how  to  be  disposed  of  149 
Disputes  concerning  settlement  of  bastard, 

how  determined    .  .150 


CONTENTS  xxi 

PAGE 

Proceedings  when  bastard  is  chargeable  to  an- 
other town 150 

Mode  of  ascertaining  sum  to  be  allowed  for 
support  of  bastard 151 

When  mother  and  child  to  be  removed  to 
county  alms-house 152 

Compromise  with  father  of  bastard;  when 
mother  may  receive  money 153 

Compromise  with  putative  fathers  in  New 
York 154 

Commitment  of  women,  notice,  transportation, 
attendants 154 

Children  of  women  convicts 155 

Female  attendants  for  feeble-minded  women 
in  transit  to  or  from  institutions  .  156 


STATE  INSTITUTIONS  FOR  WOMEN 
AND  GIRLS 

HOUSE  OF  REFUGE  AND  REFORMATORY  FOR 
WOMEN 158 

Names  and  locations 158 

Commitments 158 

Return  of  females  improperly  committed     .  161 
Transfers  to  other  institutions     ....  162 
Disposition   of  children  of  women  so  com- 
mitted    163 

Conveyance  of  women  committed  ....  164 

Detentions  and  rearrest  in  case  of  escapes     .  164 


xxii  CONTENTS 

PAGE 

Employment  of  inmates 165 

Clothing   and    money   to   be   furnished    dis- 
charged inmates  .      .      .     .     ;     ,     .      .166 

NEW  YOKE  STATE  WOMAN'S  EELIEF  CORPS 
HOME 167 

Board  of  managers 167 

Admission  to  home 168 

SAINT  SAVIOUR'S  SANITARIUM     ....  169 

Commitment 169 

Application  for  commitment     ....  171 

Appeal;  stay 173 

Habeas  corpus 174 

HOUSE  OF  THE  GOOD  SHEPHERD    .     .     .     .175 

Commitment,  certificate,  term  ....  175 
To  be  kept  apart  from  other  inmatea  .  .  177 
Right  to  habeas  corpus 177 

SHELTER  FOR  UNPROTECTED  GIRLS     .     .     .  177 

Authority  to  receive  girls 177 

Commitments  to 177 

Warrant  of  commitment 178 

Refusal  to  receive  girls 179 

Custody  of  girl  surrendered  by  parent  .  180 
Transfers  from  charitable  institutions  .  .181 

Statements  as  to  age 182 

Support  of  inmates 182 

Visitations 183 

Arrest  after  conditional  discharge  .      .      .  183 


CONTENTS  xxiii 

PAGE 

ANCHORAGE  AT  ELMIRA 184 

By-laws 184 

Approval  by  state  board  of  charities,  certi- 
ficate       185 

Inspection  by  state  board  of  charities  .  .  185 
Commitments  by  recorder  of  Elmira  .  .  186 
Commitments  from  other  counties  .  .  .  187 

Limitation  of  term 187 

Support  of  inmates 188 

Disposition  of  inmates  on  adverse  certificate  188 
Detention  and  rearrests  in  cases  of  escape  .  189 
Conveyance  of  women  committed  .  .  .  190 

Who  may  rearrest 190 

Conditional  discharge 190 

Eearrest  after  conditional  discharge  .  .  191 
Papers  furnished  by  committing  magistrate  191 

Determination  as  to  age 192 

Kemoval  and  resistance  of  insubordinate  in- 
mates      193 

Disposition  of  children  of  women  so  com- 
mitted     194 

Powers  of  superintendent 194 

Freedom  of  worship  .......  194 


PART  I 

THE    DOMESTIC    RELATIONS   OF 
WOMEN 


WOMAN  AND  NEW  YORK  LAW 


MARRIAGE 

OF  all  the  institutions  of  society  that 
are  regulated  by  the  law  of  the 
land,  marriage  is  by  far  the  most  impor- 
tant to  women. 

The  best  general  definition  of  marriage 
is  that  it  is  the  legal  status  of  husbands 
and  wives.  It  denotes  the  legal  conditions 
under  which  a  man  and  a  woman  can  co- 
habit and  have  legitimate  children.  The 
State  carefully  guards  marriage  as  the 
normal  means  of  producing  family  life 
which,  in  the  eyes  of  the  law,  is  the  funda- 
mental institution  of  civilized  society.  The 
whole  policy  of  the  State  is  directed  to 
keeping  marriage  on  a  high  moral  plane, 
and  this  chiefly  for  the  effect  upon  the 
younger  generation.  Marriages  are  to  be 
encouraged  as  well  as  regulated,  and  any- 
thing that  is  done  in  restraint  of  marriage 
is  regarded  as  against  public  policy.  It 
was  once  declared  in  the  British  House  of 
Lords  that  to  try  to  prevent  marriage  was 
the  blackest  of  all  political  sins. 

Marriage  is  a  Civil  Contract. — Marriage 
is  frequently  referred  to  as  a  civil  con- 


4        WOMAN  AND  NEW  YOEK  LAW 

tract,  but  strictly  speaking,  marriage  it- 
self is  not  a  contract,  nor  is  the  relation 
of  husband  and  wife  a  contractual  relation 
although  there  may  be  many  contracts 
arising  out  of  marriage.  Where  the  phrase 
"  civil  contract  "  is  used  the  object  is  to 
place  the  emphasis  upon  the  word  civil  in 
order  to  bring  out  the  fact  that  under 
modern  law  marriage  is  not  controlled  by 
church  law  as  in  former  times. 

The  New  York  statutes  declare,  so  far 
as  its  validity  in  law  is  concerned,  mar- 
riage continues  to  be  a  civil  contract,  to 
which  the  consent  of  parties  capable  in 
law  of  making  a  contract  is  essential.  The 
courts  have  declared  that  marriage  is  a 
civil  contract  for  certain  purposes,  but  it 
is  not  thereby  synonymous  with  the  com- 
mon law  or  statute  contract;  it  cannot  be 
dissolved  by  the  parties  when  consum- 
mated, nor  released  with  or  without  con- 
sideration, neither  can  the  rights,  duties 
and  obligations  be  transferred,  and  an 
action  at  law  based  upon  a  promise  to 
marry  scarcely  resembles  an  action  upon 
contract;  an  action  founded  upon  a 
breach  of  promise  to  marry  is  personal 
and  will  not  survive  as  against  the  exec- 
utor of  the  defendant. 

The  Essential  Elements  of  a  Valid  Mar- 
riage.— There  are  in  law  four  elements 


MAEEIAGE  5 

which  are  regarded  as  essential  to  a  valid 
marriage. 

First — Competent  parties.  Each  of  the 
parties  to  a  marriage  must  have  the  capac- 
ity in  law  to  marry  the  other.  Thus,  a 
woman  may  not  be  able  to  marry  a  certain 
man  because  she  is  too  nearly  related  to 
him  or  because  he  has  not  the  legal  right 
to  marry. 

Second — The  second  essential  element 
may  be  described  as  the  contract  to  marry. 
The  parties  must  agree  to  become  husband 
and  wife.  No  one  can  be  legally  married 
without  his  or  her  consent,  no  matter  how 
competent  in  law  the  parties  may  be  and 
no  matter  what  formalities  they  have  gone 
through.  They  must  be  in  a  mental  con- 
dition at  the  time  of  the  ceremony  to  en- 
able them  to  understand  what  they  are 
doing. 

Third — There  must  be  some  solemniza- 
tion of  marriage.  The  parties  must  go 
through  a  certain  formality,  either  civil  or 
religious,  or  both. 

Fourth — There  must  be  a  consumma- 
tion. The  parties  are  expected  to  become 
husband  and  wife  in  fact  and  to  assume 
the  marriage  rights,  duties  and  obliga- 
tions. 

The  Contract  to  Marry. — There  must  be 
a  real  agreement  between  the  man  and  the 


6         WOMAN  AND  NEW  YORK  LAW 

woman  to  result  in  a  valid  marriage.  Con- 
sent is  the  very  essence  of  a  marriage,  and 
there  can  be  no  real  marriage  without  it. 
A  mere  ceremony  cannot  make  a  man  and 
woman  husband  and  wife.  Neither  does 
acting  as  husband  and  wife  toward  each 
other  constitute  a  marriage. 

Consent  to  a  marriage  may  be  absent 
owing  to  error,  fraud  or  duress,  that  is, 
compulsion.  It  should  be  noted  that  a 
mistake  of  person,  but  of  nothing  else, 
affects  the  validity  of  a  marriage,  while 
mistakes  as  to  character,  fortune  and 
health  make  no  difference,  the  parties 
taking  each  other  for  better  or  for  worse. 
The  practice  of  any  deceit  or  false  repre- 
sentations which  induce  consent,  espe- 
cially where  the  deceived  person  is  weak 
in  mind,  or  young,  will  invalidate  a  mar- 
riage. The  fact  that  a  person  marries 
under  actual  compulsion  will  also  invali- 
date a  marriage.  It  is  not  sufficient  that 
a  woman  marry  unwillingly;  she  must 
have  been  forced  by  a  fear  of  bodily  harm. 

The  meeting  of  the  minds  which  is  es- 
sential to  a  valid  marriage  may  be  ex- 
pressed in  words,  written  or  oral,  or  by 
signs  or  implied  by  conduct.  No  technical 
words  are  necessary.  If  a  legal  marriage 
is  the  object  of  the  parties,  any  stipula- 
tions they  may  make  which  are  incon- 


MAKRIAGE  7 

sistent  with  the  law  are  simply  void.  The 
apparent  contract  is  not  affected  by  a 
mental  reservation  by  one  of  the  parties. 
The  agreement  must  be  to  be  husband  and 
wife  from  the  time  of  the  ceremony. 

Breach  of  Promise  to  Marry. — Where 
the  contract  to  marry  is  not  performed  in 
accordance  with  the  agreement,  there  is  a 
right  of  action  at  law.  Where  the  con- 
tract was  to  marry  at  a  certain  time,  suit 
may  be  brought  immediately  upon  the  re- 
nunciation of  the  contract  before  the  ex- 
piration of  such  time,  or  upon  the  discov- 
ery that  performance  by  one  party  is  im- 
possible; and  where  no  time  of  perform- 
ance was  fixed,  such  an  action  may  be 
brought  after  a  reasonable  time. 

The  fact  that  there  was  a  mutual  re- 
scission of  the  contract  is  a  good  de- 
fense; but  the  plaintiff's  consent  to  post- 
pone the  wedding  day,  the  fact  that  the 
defendant  thought  the  proposed  marriage 
would  not  tend  to  the  happiness  of  both 
parties,  or  an  adjudication  in  a  former 
action  against  the  defendant  for  seduc- 
tion, is  not.  A  defense  is  good  which  sets 
up  the  unchastity  of  the  plaintiff  occur- 
ring and  becoming  known  to  the  defendant 
subsequently  to  the  promise  to  marry,  or 
existing  at  the  time  of  the  promise  and 
coming  to  the  knowledge  of  the  defendant 


8        WOMAN  AND  NEW  YOKK  LAW 

for  the  first  time  after  such  promise,  if, 
immediately  upon  acquiring  such  knowl- 
edge, he  or  she  repudiated  the  contract; 
but  the  unchastity  of  the  plaintiff  is  not  a 
defense  where  committed  with  the  de- 
fendant, after  the  latter 's  engaging  to 
marry  the  plaintiff,  or  where  the  defend- 
ant knew  of  the  misconduct  before  the  en- 
gagement, or  learning  it  subsequently, 
failed  to  act  promptly  in  disavowing  the 
promise.  The  defendant  cannot,  however, 
take  advantage  of  undesirable  traits,  con- 
duct, characteristics,  or  other  causes,  ex- 
cept in  mitigation  of  damages,  unless  there 
was  a  fraudulent  concealment  of  the  facts 
on  the  part  of  the  plaintiff. 

A  request  for  a  performance  of  the 
promise  is  not  necessary  before  a  suit  may 
be  commenced  where  the  promise  has  been 
renounced,  but  where  no  time  and  place 
for  the  marriage  has  been  fixed  it  is  held 
that  a  breach  does  not  occur  until  there 
has  been  an  offer  to  fix  a  time  and  place 
for  the  fulfillment  of  the  promise.  An  ac- 
tion may  be  brought  as  well  by  the  man 
as  the  woman,  but  as  a  general  rule  not 
by  the  personal  representative  of  either. 
A  person  incapacitated  to  marry,  because 
a  party  to  a  subsisting  and  valid  marriage, 
cannot  maintain  an  action  for  a  breach  of 
a  marriage  promise,  and  a  person  aware 


MARRIAGE  9 

of  a  disability  on  the  part  of  the  other 
party  which  would  render  the  marriage 
void  cannot  maintain  an  action  on  the 
promise  made  by  such  other  party. 

Under  a  general  allegation  of  damages 
the  plaintiff  may  recover  not  only  an  in- 
demnity for  pecuniary  loss  and  the  dis- 
appointment of  reasonable  expectations  of 
an  advantageous  settlement  in  life,  but 
also  compensation  for  injury  to  feelings 
and  affections,  and  mortification  under- 
gone. Where,  however,  the  plaintiff  de- 
sires to  recover  damages  that  are  not  the 
direct,  natural  and  necessary  consequences 
of  the  breach  of  promise,  although  they 
may  be  the  proximate  consequences,  facts 
showing  such  damages  must  be  alleged; 
thus,  there  should  be  special  allegations  of 
seduction  under  the  promise,  loss  of 
health,  or  proper  expenditures  made  in 
preparation  for  the  marriage. 

The  Prohibited  Degrees  of  Relationship. 
— As  affecting  the  capacity  of  a  woman  to 
marry  relationship  of  consanguinity  and 
affinity  is  dependent  on  statute.  This  form 
of  incapacity  is  based  primarily  on  the 
laws  of  Moses  as  contained  in  the  eigh- 
teenth chapter  of  the  Book  Leviticus,  but 
more  directly  upon  a  statute  passed  by  the 
parliament  of  England  in  the  thirty-sec- 
ond year  of  the  reign  of  King  Henry  VIII. 


10       WOMAN  AND  NEW  YORK  LAW 

This  statute  confined  the  incapacity  to  all 
related  in  the  ascending  and  descending 
line,  and  to  collaterals  including  the  third 
degree,  civil  reckoning — that  is,  all  nearer 
than  first  cousins — and  by  construction 
the  statute  applied  whether  the  relation- 
ship was  by  blood  or  marriage,  whether 
by  the  whole  or  the  half  blood,  whether 
legitimate  or  not.  The  New  York  statute 
in  this  matter  reads  as  follows: 

Incestuous  and  Void  Marriages. — A 
marriage  is  incestuous  and  void  whether 
the  relatives  are  legitimate  or  illegitimate 
between  either: 

1.  An  ancestor  and  a  descendant. 

2.  A  brother  and  sister  of  either  the 
whole  or  the  half  blood. 

3.  An  uncle  and  niece  or  an  aunt  and 
nephew. 

If  a  marriage  thus  prohibited  be  sol- 
emnized it  shall  be  void,  and  the  parties 
thereto  shall  each  be  fined  not  less  than 
fifty  nor  more  than  one  hundred  dollars 
and  may,  in  the  discretion  of  the  court  in 
addition  to  such  fine,  be  imprisoned  for  a 
term  not  exceeding  six  months.  Any  per- 
son who  shall  knowingly  and  wilfully  sol- 
emnize such  marriage,  or  procure  or  aid 
in  the  solemnization  of  the  same,  shall  be 
deemed  guilty  of  a  misdemeanor  and  shall 
be  fined  and  imprisoned  in  like  manner. 


MAEEIAGE  11 

The  marriage  of  uncle  and  niece  is  not 
void  at  common  law,  and  such  a  marriage 
before  the  amendment  of  1893  is  valid  and 
will  not  be  annulled. 

A  marriage  valid  under  the  laws  of  the 
State  where  it  was  contracted  is  valid  in 
this  State,  and  every  right  and  privilege 
growing  out  of  the  relation  so  established 
attaches  to  each  party  thereto. 

Void  Marriages. — A  marriage  is  abso- 
lutely void  if  contracted  by  a  person  whose 
husband  or  wife  by  a  former  marriage  is 
living,  unless  either: 

1.  Such  former  marriage  has  been  an- 
nulled or  has  been  dissolved  for  a  cause 
other  than  the  adultery  of  such  person. 

2.  Such   former   husband   or   wife   has 
been  finally  sentenced  to  imprisonment  for 
life. 

3.  Such  former  husband  or  wife  has  ab- 
sented  himself   or   herself   for   five    suc- 
cessive years  then  last  past  without  being 
known  to  such  person  to  be  living  during 
that  time. 

A  person  divorced  because  of  his  or  her 
adultery  is  regarded  as  having  a  husband 
or  wife  living,  so  long  as  the  party  obtain- 
ing the  divorce  lives,  therefore  a  marriage 
with  a  person  divorced  because  of  his 
adultery  is  absolutely  void  unless  it  is  con- 
tracted in  a  State  where  such  a  marriage 


is  valid,  in  which  case  the  law  of  the  place 
of  contract  must  prevail. 

Voidable  Marriages. — A  marriage  is 
void  from  the  time  its  nullity  is  declared 
by  a  court  of  competent  jurisdiction  if 
either  party  thereto: 

1.  Is  under  the   age   of  legal   consent, 
which  is  eighteen  years; 

2.  Is  incapable  of  consenting  to  a  mar- 
riage for  want  of  understanding; 

3.  Is    incapable    of    entering    into    the 
married  state  from  physical  cause; 

4.  Consents  to  such  marriage  by  reason 
of  force,  duress  or  fraud; 

5.  Has  a  husband  or  a  wife  by  a  former 
marriage  living,  and  such  former  husband 
or  wife  has  absented  himself  or  herself  for 
five  successive  years  then  last  past  without 
being  known  to  such  party  to  be  living 
during  that  time. 

Actions  to  annul  a  void  or  voidable  mar- 
riage may  be  brought  only  as  provided  in 
the  code  of  civil  procedure. 

The  alleged  physical  incapacity  must 
have  existed  at  the  time  of  the  marriage 
and  must  still  continue  and  must  be  in- 
curable ;  mere  sterility  can  in  no  case  form 
a  sufficient  ground  for  a  decree  of  nullity. 
A  woman  who  has  had  her  ovaries  re- 
moved by  surgical  operation  is  not  incapa- 
ble of  entering  into  the  marriage  state; 


MAEEIAGE  13 

possession  of  the  organs  necessary  to  con- 
ception is  not  essential  so  long  as  there  is 
no  impediment  to  the  indulgence  of  the 
passions.  Where  a  wife  seeks  to  annul  the 
marriage  on  the  ground  of  physical  in- 
capacity of  the  husband,  the  court  has 
power  to  compel  a  surgical  examination  of 
the  defendant.  If  a  woman  induce  a  man, 
whom  she  charges  as  being  the  putative 
father  of  her  child,  to  marry  her  under  the 
supposition  that  the  child  might  be  his, 
though  she  knew  it  was  not  his  child,  she 
is  guilty  of  such  fraud  as  to  authorize  the 
court  to  annul  the  marriage.  A  marriage 
is  void  on  the  ground  of  fraud  where  one 
of  the  parties  at  the  time  of  its  celebration 
is  afflicted  with  a  chronic,  contagious  and 
hereditary  venereal  disease,  known  to  and 
concealed  by  him,  especially  where  the 
marriage  has  not  been  consummated,  and 
the  marriage  relation  had  not  yet  ripened 
into  the  complications  of  a  public  status, 
involving  the  consideration  of  questions 
of  public  policy.  The  fact  that  a  woman 
married  a  man  without  disclosing  to  him 
her  previous  marriage  and  divorce  has 
been  held  not  such  a  fraud  as  would  war- 
rant an  annulment  of  the  marriage.  The 
fact  concealed  from  the  husband  that  the 
wife,  before  marriage,  had  given  birth  to 
an  illegitimate  child,  does  not  constitute 


14       WOMAN  AND  NEW  YORK  LAW 

fraud.  So  also  as  to  concealment  by  the 
husband  of  the  fact  of  cohabitation  with 
another  woman  prior  to  the  marriage. 
Where  a  woman  pretended  to  a  man  that 
she  was  pregnant  by  him,  was  not  pregnant 
at  all,  and  the  man  married  her  believing 
her  statement,  the  marriage  cannot  be  set 
aside,  even  though  never  consummated  by 
cohabitation;  the  man  by  his  own  immoral 
acts  has  put  himself  in  the  power  of  the 
woman.  A  divorce  cannot  be  granted  for 
the  husband's  fraud  in  inducing  the  mar- 
riage by  false  representations  as  to  his 
character  and  property;  the  woman  should 
inform  herself  as  to  these  matters  and  not 
act  blindly  on  the  man's  representations. 

Marriage  After  Divorce  for  Adultery. — 
Whenever  a  marriage  has  been  or  shall  be 
dissolved,  the  complainant  may  marry 
again  during  the  lifetime  of  the  defendant; 
but  no  defendant  convicted  of  adultery 
shall  marry  again  until  after  the  death  of 
the  complainant,  unless  the  court  in  which 
the  judgment  of  divorce  was  rendered 
shall  in  that  respect  modify  such  judg- 
ment, which  modification  shall  only  be 
made  upon  satisfactory  proof  that  five 
years  have  elapsed  since  the  decree  of 
divorce  was  rendered,  and  that  the  con- 
duct of  the  defendant  since  the  dissolution 
of  said  marriage  has  been  uniformly  good. 


MAEEIAGE  15 

But  this  section  does  not  prevent  the  re- 
marriage of  the  parties  to  the  action. 

The  right  to  make  application  for  leave 
to  remarry  is  not  synonymous  with  the 
absolute  right  to  have  the  application 
granted;  the  modification  should  only  be 
made  where  the  conditions  required  are 
satisfactorily  proved,  so  the  court  may 
order  a  reference  to  secure  proofs. 

Parties  forbidden  to  marry  in  this  State 
may  contract  a  valid  marriage  in  another 
State  to  which  they  may  have  gone  solely 
for  the  purpose  of  such  marriage,  return- 
ing to  this  State  immediately  thereafter. 

After  a  divorce  has  been  granted  on  the 
grounds  of  the  adultery  of  the  husband,  he 
cannot,  in  this  State,  make  a  valid  promise 
of  marriage  during  the  lifetime  of  his  wife 
who  obtained  the  divorce. 

The  mere  fact  that  a  wife  has  absented 
herself  for  five  years,  and  that  her  hus- 
band has  not  heard  from  her  in  that  time, 
does  not  justify  him  in  marrying  again; 
it  must  appear  that  he  acted  as  a  reason- 
able man  desiring  to  act  in  good  faith 
would  have  acted  under  the  circumstances. 
Two  leading  facts  must  be  found  to  bring 
a  case  within  the  terms  of  this  statute: 
First,  "  That  the  husband  or  wife  has  ab- 
sented himself  or  herself  ";  and,  second, 
"  That  he  or  she  has  not  been  known  to 


16      WOMAN  AND  NEW  YOEK  LAW 

such  person  to  be  living  during  the  space 
of  five  successive  years. ' '  The  words  * '  ab- 
sented himself  "  evidently  refer  to  a  with- 
drawal of  his  whereabouts  from  his  wife, 
his  relatives,  and  from  the  ordinary  and 
usual  opportunities  for  identification;  such 
a  withdrawal  from  his  wife  and  family  as 
would,  after  a  lapse  of  five  successive 
years,  lead  naturally  to  the  inference  that 
death  had  ensued. 

Where  the  wife,  after  the  husband  ab- 
sents himself  for  five  years,  in  good  faith 
and  supposing  him  to  be  dead,  contracts 
a  second  marriage,  the  latter  is  only  void 
after  its  nullity  is  pronounced  by  a  court, 
and  that  only  on  application  of  one  of  the 
parties,  it  cannot  be  attacked  collaterally. 

By  Whom  a  Marriage  Must  be  Sol- 
emnized.— A  marriage  must  be  solemnized 
by  either: 

1.  A  clergyman  or  minister  of  any  re- 
ligion, or  by  the  leader,  or  either  of  the 
two  assistant  leaders,  of  the  Society  for 
Ethical  Culture  in  the  Borough  of  Manhat- 
tan of  the  City  of  New  York,  or  by  the 
leader  of  the  Society  for  Ethical  Culture 
in  the  Borough  of  Brooklyn  of  the  City  of 
New  York; 

2.  A   mayor,   recorder,   alderman,    city 
magistrate,  police  justice  or  police  magis- 
trate of  a  city,  except  that  in  cities  which 


MAEEIAGE  17 

contain  more  than  one  hundred  thousand 
and  less  than  one  million  inhabitants,  a 
marriage  shall  be  solemnized  by  the 
mayor  or  police  justice,  and  by  no  other 
officer  of  such  city  except  as  provided  by 
subdivisions  one  and  three  of  this  section; 

3.  A   justice    or   judge   of   a   court   of 
record,  or  of  a  municipal  court,  or  a  jus- 
tice of  the  peace;  except  that  justices  of 
the  peace  in  cities   which   contain  more 
than  one  hundred  thousand  and  less  than 
one    million    inhabitants,    shall    have    no 
power  to  solemnize  marriages;  or, 

4.  A  written  contract  of  marriage  signed 
by  both  parties  and  at  least  two  witnesses 
who  shall  subscribe  the  same,  stating  the 
place  of  residence  of  each  of  the  parties 
and  witnesses  and  the  date  and  place  of 
marriage,  and  acknowledged  by  the  par- 
ties and  witnesses  in  the  manner  required 
for  the  acknowledgment  of  a  conveyance 
of  real  estate  to  entitle  the  same  to  be 
recorded,  provided,  however,  that  all  such 
contracts  of  marriage  must  in  order  to  be 
valid  be  acknowledged  before  a  judge  of  a 
court  of  record.    Such  a  contract  shall  be 
recorded  within  six  months  after  its  execu- 
tion in  the  office  of  the  clerk  of  the  county 
in  which  the  marriage  was  solemnized. 

Marriage,    How   Solemnized. — No   par- 
ticular form  or  ceremony  is  required  when 


18       WOMAN  AND  NEW  YOEK  LAW 

a  marriage  is  solemnized  as  herein  pro- 
vided by  a  clergyman  or  magistrate,  but 
the  parties  must  solemnly  declare  in  the 
presence  of  a  clergyman  or  magistrate  and 
the  attending  witness  or  witnesses  that 
they  take  each  other  as  husband  and  wife. 
In  every  case  at  least  one  witness  beside 
the  clergyman  or  magistrate  must  be  pres- 
ent at  the  ceremony. 

The  preceding  provisions  of  this  chap- 
ter, so  far  as  they  relate  to  the  manner  of 
solemnizing  marriages,  shall  not  affect 
marriages  among  people  called  Friends  or 
Quakers;  nor  marriages  among  the  people 
of  any  other  denominations  having  as  such 
any  particular  mode  of  solemnizing  mar- 
riages; but  such  marriages  must  be  sol- 
emnized in  the  manner  heretofore  used 
and  practiced  in  their  respective  societies 
or  denominations,  and  marriages  so  sol- 
emnized shall  be  as  valid  as  if  this  article 
had  not  been  enacted. 

Marriage  Licenses. — It  shall  be  neces- 
sary for  all  persons  intending  to  be  mar- 
ried to  obtain  a  marriage  license  from  the 
town  or  city  clerk  of  the  town  or  city  in 
which  the  woman  to  be  married  resides, 
and  to  deliver  said  license  to  the  clergy- 
man or  magistrate  who  is  to  officiate  be- 
fore the  marriage  can  be  performed.  If 
the  woman  or  both  parties  to  be  married 


MARRIAGE  19 

are  non-residents  of  the  State,  such  license 
shall  be  obtained  from  the  clerk  of  the 
town  or  city  in  which  the  marriage  is  to 
be  performed. 

Effect  of  Marriage  of  Parents  of  Illegiti- 
mates.— All  illegitimate  children  whose 
parents  have  heretofore  intermarried  or 
who  shall  hereafter  intermarry  shall  there- 
by become  legitimatized  and  shall  become 
legitimate  for  all  purposes  and  entitled  to 
all  the  rights  and  privileges  of  legitimate 
children;  but  an  estate  or  interest  vested 
or  trust  created  before  the  marriage  of  the 
parents  of  such  child  shall  not  be  divested 
or  affected  by  reason  of  such  child  being 
legitimatized.  An  illegitimate  child,  legiti- 
mated by  the  subsequent  marriage  of  its 
parents  according  to  the  laws  of  the  State 
or  country  where  the  marriage  takes  place, 
is  legitimate  everywhere,  and  enjoys  the 
rights  derived  from  legitimacy,  including 
the  right  of  inheritance. 

Common  Law  Marriage. — Since  the  first 
day  of  January,  1902,  what  was  known  as 
a  common  law  marriage  has  not  been  rec- 
ognized in  the  State  of  New  York  unless 
entered  into  through  a  written  agreement 
of  marriage,  signed  by  both  parties  and 
at  least  two  witnesses  who  shall  subscribe 
to  the  instrument  stating  the  place  of  resi- 
dence of  each  of  the  parties  and  witnesses 


20       WOMAN  AND  NEW  YORK  LAW 

and  the  date  and  place  of  the  marriage. 
This  agreement  must  be  acknowledged  by 
the  parties  and  witnesses  in  the  manner 
required  for  the  acknowledgment  of  a  con- 
veyance of  real  estate  to  entitle  such  a  con- 
veyance to  be  recorded.  Such  an  agree- 
ment must  be  filed  within  six  months  after 
its  execution  in  the  office  of  the  clerk  of 
the  town  or  city  in  which  the  agreement 
was  executed,  and  such  a  written  agree- 
ment, or  a  certified  copy,  shall  be  presump- 
tive evidence  of  the  marriage. 

Contracts  in  Contemplation  of  Marriage. 
— A  contract  made  between  persons  in  con- 
templation of  marriage  remains  in  full 
force  after  the  marriage  takes  place. 

An  ante-nuptial  contract  for  the  release 
of  dower  by  the  future  wife  will  be  scruti- 
nized most  rigidly.  The  presumption  is 
against  the  validity  of  such  a  contract,  and 
the  burden  of  proof  is  upon  the  husband 
to  show  good  faith.  Such  a  contract  is 
properly  declared  void  when  it  appears 
that  the  relinquishment  of  dower  was  not 
a  condition  of  the  engagement  of  mar- 
riage; that  there  was  no  negotiation  be- 
tween the  parties  prior  thereto;  that  the 
defendant  did  not  disclose  to  her  that  this 
would  mean  the  relinquishment  of  her 
dower  right;  that  no  consideration  was 
paid  to  her  for  the  surrender,  and  that  she 


MAEEIAGE  21 

acted  without  the  aid  of  counsel.  An  ante- 
nuptial contract  by  which  the  woman 
agreed  to  accept  a  sum  in  full  satisfaction 
of  her  dower  in  her  husband's  estate,  he 
agreeing  to  provide  therefor  in  his  will,  is 
valid.  The  amount  agreed  to  be  paid  by 
a  future  husband  in  consideration  of  the 
release  of  all  her  dower  rights  by  his 
future  wife  is  a  debt  within  the  meaning 
of  the  usual  clause  of  a  will  directing  the 
payment  of  debts. 

A  female  infant  is  bound  by  a  settlement 
of  her  personal  estate  made  in  contempla- 
tion of  marriage;  such  a  settlement  of  her 
real  estate  is  voidable  only  by  her  after 
she  becomes  of  age,  but  will  not  be  set 
aside  on  her  application  during  the  mar- 
riage after  issue  born.  The  objection  to 
the  validity  of  a  marriage  settlement  be- 
cause the  parties  to  it  were  infants  can 
only  be  made  by  the  parties  themselves, 
It  is  not  for  that  cause  void,  but  merely 
voidable  at  the  option  of  the  infants  upon 
arriving  at  full  age. 

A  wife  may  enforce  an  ante-nuptial 
agreement  in  which  the  husband  agreed  to 
convey  certain  real  property  to  the  wife, 
and  to  pay  her  a  certain  sum  of  money. 
Specific  performance  may  be  had  of  an 
agreement  to  convey,  and  damages  for  the 
breach  of  contract  to  pay  the  money. 


23      WOMAN  AND  NEW  YOEK  LAW 

Ante-nuptial  contracts  by  which  it  is  at- 
tempted to  regulate  the  interests  which 
each  of  the  parties  to  the  marriage  take 
in  the  property  of  the  other  during  mar- 
riage or  after  death  are  favored  by  the 
courts  and  will  be  enforced  in  equity  ac- 
cording to  the  intention  of  the  parties.  An 
ante-nuptial  agreement  by  the  future  wife 
to  release  all  her  claims  on  his  estate  in 
consideration  of  a  grossly  inadequate  sum 
made  without  opportunity  of  consulting 
others  and  in  ignorance  of  the  circum- 
stances of  the  intended  husband  throws 
the  burden  of  proof  of  fairness  upon  the 
representatives  of  the  husband. 

Liability  of  Husband  for  Ante-Nuptial 
Debts. — A  husband  who  acquires  property 
of  his  wife  by  ante-nuptial  contract  or 
otherwise,  is  liable  for  her  debts  con- 
tracted before  marriage,  but  only  to  the 
extent  of  the  property  so  acquired. 

Contracts  to  Alter  or  Dissolve  Marriage. 
— A  separation  agreement  executed  be- 
tween husband  and  wife,  when  they  are 
living  together  as  such,  is  void  as  against 
public  policy  where  it  is  an  essential  part 
thereof  that  they  should  thereafter  sep- 
arate. But  otherwise  as  to  a  contract  for 
support  executed  by  a  husband  and  wife 
who  have  lived  apart  for  a  number  of 
years.  A  contract  by  a  husband  to  sup- 


MAERIAGE  23 

port  his  wife  made  when  a  separation  has 
already  taken  place  is  valid.  The  inter- 
vention of  a  third  person  as  trustee  is  not 
necessary.  If  the  husband  and  wife  were 
living  together  and  agreed  to  separate,  the 
rule  would  be  different. 

Where  by  the  terms  of  a  separation 
agreement  the  wife  accepts  the  provision 
in  satisfaction  of  her  support  and  main- 
tenance and  relieves  the  husband  from  any 
and  all  claims  upon  his  personal  property 
and  from  liability  for  her  debts,  the  agree- 
ment will  not  be  sustained  on  the  theory 
that  it  is  made  to  secure  to  the  wife  a  legal 
division  of  the  husband's  property.  A 
promise  by  a  husband  to  pay  money  to  his 
wife  in  consideration  of  her  condoning  his 
adultery  is  void  as  against  public  policy. 
A  contract  whereby  a  husband  was  to  pay 
his  wife  a  certain  sum  semi-annually  which 
appears  to  have  been  part  of  a  larger 
agreement  whereby  he  was  to  assist  her  to 
procure  an  absolute  divorce  is  unenforce- 
able as  against  public  policy. 

Pardon  Not  to  Restore  Marital  Rights. — 
A  pardon  granted  to  a  person  sentenced  to 
imprisonment  for  life  within  this  State 
does  not  restore  that  person  to  the  rights 
of  a  previous  marriage  or  to  the  guardian- 
ship of  a  child,  the  issue  of  such  a  mar- 
riage. 


LIMITED  DIVOECE 

For  What  Causes  Action  May  Be  Main- 
tained.— In  either  of  the  cases  specified 
hereafter  an  action  may  be  maintained  by 
a  husband  or  wife,  against  the  other  party 
to  the  marriage,  to  procure  a  judgment 
separating  the  parties  from  bed  and  board, 
forever  or  a  limited  time,  for  either  of  the 
following  causes: 

1.  The  cruel  and  inhuman  treatment  of 
the  plaintiff  by  the  defendant. 

2.  Such  conduct  on  the  part  of  the  de- 
fendant   towards    the    plaintiff    as    may 
render  it   unsafe   and   improper   for   the 
former  to  cohabit  with  the  latter. 

3.  The  abandonment  of  the  plaintiff  by 
the  defendant. 

4.  Where  the  wife  is  plaintiff,  the  neg- 
lect or  refusal  of  the  defendant  to  provide 
for  her. 

Such  an  action  may  be  maintained  in 
either  of  the  following  cases: 

1.  When  both  parties  are  residents  of 
the  State  when  the  action  is  commenced. 

2.  Where  the  parties  were  married  with- 
in and  the  plaintiff  is  a  resident  thereof 
when  the  action  is  commenced. 

3.  Where  the  parties  having  been  mar- 
ried without  the  State,  have  become  resi- 

24 


LIMITED  DIVOECE  25 

dents  of  the  State,  and  have  continued  to 
be  residents  thereof  for  at  least  one  year; 
and  the  plaintiff  is  such  a  resident  when 
the  action  is  commenced. 

Support  of  Wife  and  Children. — Where 
the  action  is  brought  by  the  wife,  the  court 
may,  in  the  final  judgment  of  separation, 
give  such  directions  as  the  nature  and  cir- 
cumstances of  the  case  require.  In  par- 
ticular, it  may  compel  the  defendant  to 
provide  suitably  for  the  education  and 
maintenance  of  the  children  of  the  mar- 
riage, and  for  the  support  of  the  plaintiff 
as  justice  requires,  having  regard  to  the 
circumstances  of  the  respective  parties. 
And  the  court  may  in  such  an  action 
render  a  judgment  compelling  the  defend- 
ant to  make  provision  specified  in  the  sec- 
tion where,  under  the  circumstances  of  the 
case,  such  a  judgment  is  proper,  without 
rendering  a  judgment  of  separation. 

Judgment  for  Separation  May  Be  Re- 
voked.— Upon  the  joint  application  of  the 
parties,  accompanied  with  satisfactory  evi- 
dence of  their  reconciliation,  a  judgment 
for  a  separation,  forever  or  for  a  limited 
period,  rendered  as  prescribed  in  this 
article,  may  be  revoked  at  any  time  by  the 
court  which  rendered  it,  subject  to  such 
regulations  and  restrictions  as  the  court 
thinks  fit  to  impose. 


ACTION  FOR  A  DIVORCE 

In  What  Cases  Action  May  be  Main- 
tained.— In  either  of  the  following  cases  a 
husband  or  a  wife  may  maintain  an  action 
against  the  other  party  to  the  marriage  to 
procure  a  judgment  divorcing  the  parties 
and  dissolving  the  marriage,  by  reason  of 
the  defendant's  adultery: 

1.  Where  both  parties  were  residents  of 
the  State  when  the  offense  was  committed. 

2.  Where  the  parties  were  married  with- 
in this  State. 

3.  Where  the  plaintiff  was  a  resident  of 
the  State  when  the  offense  was  committed, 
and  is  a  resident  thereof  when  the  action 
is  commenced. 

4.  Where    the    offense   was    committed 
within  the  State,  and  the  injured  party, 
when  the  action  is  commenced,  is  a  resi- 
dent of  the  State. 

When  Divorce  Denied,  Although  Adul- 
tery Proved. — In  either  of  the  following 
cases,  the  plaintiff  is  not  entitled  to  a 
divorce,  although  the  adultery  is  estab- 
lished: 

1.  Where  the  offense  was  committed  by 
the  procurement  or  with  the  connivance  of 
the  plaintiff. 

26 


ACTION  FOR  A  DIVORCE  27 

2.  Where  the  offense  charged  has  been 
forgiven  by  the  plaintiff.    The  forgiveness 
may  be  proved,  either  affirmatively  or  by 
the  voluntary  cohabitation  of  the  parties, 
with  the  knowledge  of  the  fact. 

3.  Where  there  has  been  no  express  for- 
giveness, and  no  voluntary  cohabitation  of 
the  parties,  but  the  action  was  not  within 
five  years  after  the  discovery,  by  the  plain- 
tiff, of  the  offense  charged. 

4.  Where   the   plaintiff   has    also   been 
guilty    of    adultery   under    such    circum- 
stances  that   the   defendant  would   have 
been  entitled,  if  innocent,  to  a  divorce. 

Regulations  When  Action  is  Brought  by 
Wife. — Where  the  action  is  brought  by  the 
wife,  the  following  regulations  apply  to 
the  proceedings: 

1.  The  legitimacy  of  any  child  of  the 
marriage,  born  or  begotten  before  the  com- 
mencement of  the  action,  is  not  affected 
by  a  judgment  dissolving  the  marriage. 

2.  The  court  may,  in  the  final  judgment 
dissolving  the  marriage,  require  the  de- 
fendant to  provide  suitably  for  the  educa- 
tion and  maintenance  of  the  children  of 
the  marriage,  and  for  the  support  of  the 
plaintiff,  as  justice  requires,  having  regard 
to  the  circumstances  of  the  respective  par- 
ties; and  may,  by  order,  upon  the  applica- 
tion of  either  party  to  the  action,  and  after 


28       WOMAN  AND  NEW  YOEK  LAW 

due  notice  to  the  other,  to  be  given  in  such 
manner  as  the  court  shall  prescribe,  at  any 
time  after  final  judgment  whether  hereto- 
fore or  hereafter  rendered,  annul,  vary  or 
modify  such  a  direction.  But  no  such  ap- 
plication shall  be  made  by  the  defendant 
unless  leave  to  make  the  same  shall  have 
been  previously  granted  by  the  court  by 
order  made  upon  or  without  notice  as  the 
court  in  its  discretion  may  deem  proper 
after  presentation  to  the  court  of  satisfac- 
tory proof  that  justice  requires  that  such 
an  application  should  be  entertained. 

3.  If,  when  final  judgment  is  rendered, 
dissolving  the  marriage,  the  plaintiff  is  the 
owner  of  any  real  property;  or  has,  in  her 
possession,  or  under  her  control,  any  per- 
sonal property  or  thing  in  action  which 
was  left  with  her  by  the  defendant,  or  ac- 
quired by  her  own  industry,  or  given  to 
her  by  bequest  or  otherwise;  or  if  she  is 
or  may  thereafter  become  entitled  to  any 
property  by  the  decease  of  a  relative  in- 
testate, the  defendant  shall  not  have  any 
interest   therein,   absolute   or  contingent, 
before  or  after  her  death. 

4.  Where  final  judgment  is  rendered  dis- 
solving the  marriage,  the  plaintiff's  in- 
choate right  of  dower,  in  any  real  prop- 
erty, of  which  the  defendant  then  is  or  was 
th'eretofore  seized,  is  not  affected  by  the 
judgment. 


ACTION  FOE  A  DIVOECE  29 

When  Action  is  Brought  by  Husband. — 

Where  the  action  is  brought  by  the  hus- 
band, the  following  regulations  apply  to 
the  proceedings: 

1.  The  legitimacy  of  a  child,  born  or  be- 
gotten before  the  commencement  of  the 
offense  charged,  is  not  affected  by  a  judg- 
ment   dissolving   the   marriage;    but    the 
legitimacy  of  any  other  child  of  the  wife 
may  be  determined,  as  one  of  the  issues  in 
the  action.    In  the  absence  of  proof  to  the 
contrary,  the  legitimacy  of  all  the  children 
begotten  before  the  commencement  of  the 
action  must  be  presumed. 

2.  A  judgment  dissolving  the  marriage 
does  not  impair,  or  otherwise  affect,  the 
plaintiff's  rights  and  interests  in  or  to  any 
real  or  personal  property  which  the  de- 
fendant owns  or  possesses,  when  the  judg- 
ment is  rendered. 

3.  Where  judgment  is  rendered  dissolv- 
ing the  marriage,  the  defendant  is  not  en- 
titled to  dower  in  any  of  the  plaintiff's 
real  property,  or  to  a  distributive  share  in 
his  personal  property. 


THE  CUSTODY  AND  WAGES  OF  CHIL- 
DREN 

Habeas  Corpus  for  Child  Detained  by 
Parent. — A  husband  or  wife,  being  an  in- 
habitant of  this  State,  living  in  a  state  of 
separation,  without  being  divorced,  who 
has  a  minor  child,  may  apply  to  the  su- 
preme court  for  a  writ  of  habeas  corpus  to 
have  such  minor  child  brought  before  such 
court;  and  on  the  return  thereof,  the  court, 
on  due  consideration,  may  award  the 
charge  and  custody  of  such  child  to  either 
parent  for  such  time,  under  such  regula- 
tions and  restrictions,  and  with  such  pro- 
visions and  directions,  as  the  case  may  re- 
quire, and  may  at  any  time  thereafter 
vacate  or  modify  such  order. 

It  is  not  necessary  that  the  wife's  sep- 
aration from  her  husband  is  one  resulting 
from  some  arrangement  placing  the  par- 
ties in  such  a  situation  recognized  by  law, 
and  technically  defined  and  established; 
nor  is  it  necessary  that  a  case  be  made  suf- 
ficiently strong  to  authorize  a  decree  for 
some  one  of  the  causes  mentioned  in  the 
statute  relating  to  divorces.  Where  it  ap- 
pears that  the  child  is  not  actually  a  resi- 

30 


CUSTODY  OF  CHILDEEN  31 

dent  of  or  within  this  State  or  not  in  the 
custody  of  a  person  who  is  a  resident  of 
this  State,  the  court  then  has  no  jurisdic- 
tion to  determine  the  question  of  the  cus- 
tody of  such  non-resident. 

The  court  has  held  that  where  a  mother, 
being  the  actual  custodian  of  her  child, 
after  a  divorce  for  abandonment,  which 
made  no  disposition  of  the  child,  estab- 
lishes a  domicile  in  this  State  and  main- 
tains the  same  for  four  years,  her  civil 
status  establishes  that  of  the  child,  and 
that  a  foreign  court  has  no  power  while 
she  and  the  child  are  temporarily  in  that 
State  to  regulate  the  relations  between 
them  upon  habeas  corpus. 

It  has  been  held  that  where  there  is  no 
substantial  ground  for  a  conclusion  that  a 
husband  and  wife,  who  have  separated  be- 
cause unable  to  agree  in  their  domestic  re- 
lations, are  not  equally  fit  custodians  of 
their  five-year-old  son,  so  far  as  the  matter 
depends  upon  their  personal  qualities, 
their  moral  standing  and  their  ability 
financially  to  accord  to  the  child  all  that 
its  welfare  would  require,  the  father,  by 
reason  of  his  paramount  right  in  law,  is 
entitled  to  the  custody  of  the  child.  The 
law  awards  the  custody  to  the  father  un- 
less the  welfare  of  the  child  demands  an 
award  to  the  mother.  Where  the  infant 


32       WOMAN  AND  NEW  YOEK  LAW. 

is  of  tender  years,  requiring  the  care  and 
nurture  of  a  mother,  the  custody  may  be 
awarded  to  her.  The  superior  right  of  the 
father  to  the  custody  of  his  children  is  sub- 
ject to  the  control  of  the  court  in  two 
cases:  first,  where  the  father  has  forfeited 
the  right  by  misconduct  toward  the  child; 
second,  where  the  father  and  mother  are 
living  apart  under  such  circumstances  as 
would  warrant  a  divorce  a  mensa  et  thoro. 
In  such  cases  the  jurisdiction  of  the  court 
is  equitable  in  its  character;  and  the  wel- 
fare of  the  child  is  the  chief  object  to  be 
attained  and  must  be  the  guide  for  the 
judgment  of  the  court.  Considerations  af- 
fecting the  health  and  morals  of  a  child 
may  justify  the  court  in  withholding  its 
custody  from  its  legal  guardians. 

Payment  of  Wages  to  Minor;  When 
Valid. — Where  a  minor  is  in  the  employ- 
ment of  a  person  other  than  his  parent  or 
guardian,  payment  to  such  a  minor  of  his 
wages  is  valid,  unless  such  parent  or  guar- 
dian notify  the  employer  in  writing  within 
thirty  days  after  the  commencement  of 
such  service,  that  such  wages  are  claimed 
by  such  parent  or  guardian,  but  whenever 
such  notice  is  given  at  any  time,  payments 
to  the  minor  shall  not  be  valid  for  services 
rendered  thereafter. 


CUSTODY  OF  CHILDKEN  33 

A  parent  may  emancipate  an  infant 
child  and  confer  a  right  upon  it  to  acquire 
property  and  possess  it  against  all  persons 
whatsoever,  and  hence  may  contract  with 
such  minor  to  pay  him  for  services  ren- 
dered to  the  parent. 


THE  GUARDIANSHIP  OF  CHILDREN 

Guardians  in  Socage. — When  a  minor 
for  whom  a  general  guardian  of  the  prop- 
erty has  not  been  appointed  shall  acquire 
real  property,  the  guardianship  of  his 
property  with  the  rights,  powers  and 
duties  of  a  guardian  in  socage  belongs: 

1.  To  the  father. 

2.  If  there  be  no  father,  to  the  mother. 

3.  If  there  be  no  father  or  mother,  to 
the  nearest  and  eldest  relative  of  full  age, 
not  under  a  legal  incapacity;  and  as  be- 
tween relatives  of  the  same  degree  of  con- 
sanguinity, males  shall  be  preferred. 

The  rights  and  authority  of  every  such 
guardian  shall  be  superseded  by  a  testa- 
mentary or  other  guardian  appointed  in 
pursuance  of  this  article. 

The  guardian  in  socage  has  the  custody 
of  the  infant's  real  property,  and  is  en- 
titled to  receive  its  rents  and  profits,  lease 
it  and  recover  the  rents  in  her  own  name, 
and  otherwise  exercise  control  over  such 
property.  A  mother  of  infants,  who  is 
their  guardian  in  socage,  may  for  the  pro- 
tection of  their  common  interests,  or  for 
her  own  protection  alone,  purchase  upon 

34 


GUAEDIANSHIP  OF  CHILDEEN"        35 

foreclosure  real  estate  in  which  they  have 
interests,  and  in  which  she  has  dower 
rights,  and  may  take  a  deed  therefor  in 
her  own  name,  and  convey  a  good  title  to 
a  subsequent  grantee. 

Appointment  of  Guardians  by  Parent. — 
A  married  woman  is  a  joint  guardian  of 
her  children  with  her  husband,  with  equal 
powers,  rights  and  duties  in  regard  to 
them.  Upon  the  death  of  either  father  or 
mother,  the  surviving  parent,  whether  of 
full  age  or  a  minor,  of  a  child  likely  to  be 
born,  or  of  any  living  child  under  the  age 
of  twenty-one  years  and  unmarried,  may, 
by  deed  or  last  will,  duly  executed,  dispose 
of  the  custody  and  tuition  of  such  child 
during  its  minority  or  for  any  less  time, 
to  any  person  or  persons.  Either  the 
father  or  mother  may  in  the  lifetime  of 
them  both,  by  last  will  duly  executed,  ap- 
point the  other  the  guardian  of  the  person 
and  property  of  such  child,  during  its 
minority.  A  person  appointed  guardian  in 
pursuance  of  this  section  shall  not  exercise 
the  power  or  authority  thereof  unless  such 
will  is  admitted  to  probate,  or  such  deed 
executed  and  recorded  as  provided  by  the 
code  of  civil  procedure. 

Since  the  enactment  of  this  section  a 
guardian  of  a  child  cannot  be  appointed 
on  the  father's  petition  without  notice  to 


36       WOMAN  AND  NEW  YOEK  LAW 

the  mother.  The  husband  cannot  lawfully 
give  the  custody  of  his  children  to  a  third 
person  without  the  consent  of  his  wife. 

Mother  and  father  are  now  equal  in  their 
rights  of  guardianship  over  their  child, 
and  therefore  the  mother  is  not  confronted 
now,  as  heretofore,  with  the  common  law 
preference  for  the  father.  When  it  ap- 
pears that  the  mother  is  well  fitted  to  care 
for  the  child,  its  guardianship  will  not  be 
given  to  the  father,  who  is  equally  well 
fitted,  but  whose  business  requires  him  to 
be  away  from  his  place  of  residence  every 
day. 

A  will  in  which  a  father  leaves  his  prop- 
erty to  minor  children  and  appoints  two 
persons  to  be  guardians  of  the  persons  of 
such  children,  is  ineffective  as  against  the 
mother  who  survives  the  testator.  Such 
an  appointment  is  in  violation  of  this  sec- 
tion, which  makes  the  mother  joint  guard- 
ian of  her  children  with  her  husband. 

It  is  a  surviving  parent  only  who  may 
appoint  a  testamentary  guardian,  except 
that  each  may,  in  the  lifetime  of  both,  ap- 
point by  will  the  other  as  such  guardian. 
Where  the  father  is  living,  letters  of  testa- 
mentary guardianship  will  be  denied  to 
a  guardian  appointed  by  the  will  of  a  mar- 
ried woman  to  whom  the  care  and  custody 
of  her  children  were  awarded  in  an  action 
for  divorce. 


GUARDIANSHIP  OF  CHILDREN        37 

Powers  and  Duties  of  Such  Guardians. — 

Every  such  disposition,  from  the  time  it 
takes  effect,  shall  vest  in  the  person  to 
whom  made,  if  he  accepts  the  appoint- 
ment, all  the  rights  and  powers,  and  sub- 
ject him  to  all  the  duties  and  obligations 
of  a  guardian  of  such  minor,  and  shall  be 
valid  and  effective  against  every  other 
person  claiming  the  custody  and  tuition  of 
such  minor,  as  guardian  in  socage  or  other- 
wise. He  may  take  the  custody  and 
charge  of  the  tuition  of  such  minor,  and 
maintain  all  proper  actions  for  the  wrong- 
ful taking  or  detention  of  the  minor,  and 
shall  recover  damages  in  such  actions  for 
the  benefit  of  his  ward.  He  shall  also  take 
the  custody  and  management  of  the  per- 
sonal estate  of  such  minor  and  the  profits 
of  his  real  estate,  during  the  time  for 
which  such  disposition  shall  have  been 
made,  and  may  bring  such  actions  in  re- 
lation thereto  as  a  guardian  in  socage 
might  by  law. 

The  right  of  a  testamentary  guardian  to 
the  custody  of  his  ward  is  no  greater  than 
that  of  the  father,  and  the  court  will  not, 
unless  it  is  for  the  welfare  of  the  child, 
interfere  with  the  custody  of  the  person  to 
whom  it  was  committed  by  the  mother. 

Duties  and  Liabilities  of  All  General 
Guardians. — A  general  guardian  or  guard- 


38       WOMAN  AND  NEW  YOKK  LAW 

ian  in  socage  shall  safely  keep  the  prop- 
erty of  her  ward  that  shall  come  into  her 
custody,  and  shall  not  make  or  suffer  any 
waste,  sale  or  destruction  of  such  prop- 
erty or  inheritance,  but  shall  keep  in  re- 
pair and  maintain  the  houses,  gardens  and 
other  appurtenances  to  the  lands  of  her 
ward,  by  and  with  the  issues  and  profits 
thereof,  or  with  such  other  moneys  belong- 
ing to  her  ward  as  shall  be  in  her  pos- 
session; and  shall  deliver  the  same  to  her 
ward  when  he  comes  to  full  age,  in  at 
least  as  good  condition  as  such  guardian 
received  the  same,  inevitable  decay  and 
injury  only  excepted;  and  shall  answer  to 
her  ward  for  the  issues  and  profits  of  the 
real  estate  received  by  her,  by  a  lawful 
account,  to  be  settled  before  any  court, 
judge  or  surrogate  having  authority  to 
settle  the  accounts  of  general  and  testa- 
mentary guardians;  and  any  order,  judg- 
ment or  decree  in  any  action  or  proceeding 
to  settle  such  accounts  may  be  enforced  to 
the  same  extent,  and  in  like  manner  as  in 
the  case  of  general  and  testamentary 
guardians.  If  any  guardian  shall  make  or 
suffer  any  waste,  sale  or  destruction  of  the 
inheritance  of  her  ward,  she  shall  lose  the 
custody  of  the  same,  and  of  such  ward, 
and  shall  forfeit  to  the  ward  treble  dam- 
ages. 


GUAEDIANSHIP  OF  CHILDEEN        39 

Where  a  mother  is  general  guardian  of 
an  infant,  the  mother  should  on  the  final 
accounting  be  allowed  such  sum  as  she 
would  be  allowed  for  the  support  of  the 
child  if  she  had  made  an  application  to 
the  surrogate  at  the  earliest  possible  date 
for  an  order  fixing  a  sum  for  such  purpose. 
A  mother  who  secured  the  custody  of  her 
child  on  habeas  corpus  proceedings  is  not 
entitled  to  charge  the  expense  thereof  to 
the  infant's  estate  upon  being  appointed 
his  general  guardian.  Where  a  mother  is 
appointed  a  general  guardian  and  the  child 
lives  with  its  mother  and  stepfather  in  the 
latter 's  house,  and  the  mother  pays  noth- 
ing for  its  board,  she  is  not  entitled  to  an 
allowance  out  of  the  child's  estate  for  the 
board  thus  furnished  to  the  child. 

Guardianship  of  Married  Woman. — The 
lawful  marriage  of  a  woman  before  she  at- 
tains her  majority  terminates  a  general 
guardianship  with  respect  to  her  person, 
but  not  with  respect  to  her  property. 

Investment  of  Trust  Funds  by  Guard- 
ian.— A  guardian  holding  trust  funds  for 
investment  has  the  powers  provided  by  the 
decedent  estate  law  for  an  executor  or  an 
administrator.  A  guardian  must  keep  the 
money  of  her  ward  properly  invested,  and 
a  neglect  to  do  so  renders  her  chargeable 
for  interest  on  the  unemployed  funds. 


40      WOMAN  AND  NEW  YORK  LAW 

Guardianship  of  Indigent  Children  by 
Incorporated  Orphan  Asylums.  —  The 
guardianship  of  the  person  and  the  cus- 
tody of  an  indigent  child  may  be  com- 
mitted to  an  incorporated  orphan  asylum 
or  other  institution  incorporated  for  the 
care  of  orphan,  friendless  or  destitute  chil- 
dren, by  an  instrument  in  writing  signed: 

1.  By  the  parents  of  such  child,  if  both 
such  parents  shall  then  be  living,  or  by  the 
surviving  parent,  if  either  parent  of  such 
child  be  dead; 

2.  If  either  one  of  such  parents  shall 
have  for  a  period  of  six  months  then  next 
preceding  abandoned  such  child,  by  the 
other  of  such  parents; 

3.  If  the  father  of  such  child  shall  have 
neglected  to  provide  for  his  family  during 
the  six  months  next  preceding,  or  if  such 
child  is  a  bastard,  by  the  mother  of  such 
child; 

4.  If  both  parents  of  such  child  are  dead, 
by  the  guardian  of  the  person  of  such 
child   lawfully    appointed,    with    the    ap- 
proval of  the  court  or  officer  which  ap- 
pointed such  guardian  to  be  entered  of 
record ; 

5.  If   both   parents   of   such   child   are 
dead,  and  no  legal  guardian  of  the  person 
of  such  child  has  been  appointed,  and  no 
such  guardian  has  been  appointed  by  will 


GUAEDIANSHIP  OF  CHILDEEX       41 

or  by  deed  or  by  either  parent  thereof,  or 
if  the  parents  have  abandoned  such  child 
for  the  period  of  six  months  then  next  pre- 
ceding, by  the  mayor  of  the  city  or  by  the 
county  judge  of  the  county  in  which  asy- 
lum or  such  other  institution  is  located. 


THE  ADOPTION  OF  CHILDEEN. 

A)OPTION  of  children  was  unknown 
to  the  common  law  and  exists  in 
the  United  States  only  by  virtue  of 
statute;  the  first  general  statute  on  this 
subject  in  New  York  was  chapter  830  of 
the  Laws  of  1873. 

Adoption  is  the  legal  act  whereby  an 
adult  takes  a  minor  into  the  relation  of 
child  and  thereby  acquires  the  rights  and 
incurs  the  responsibilities  of  parent  in  re- 
spect to  such  minor.  The  person  adopting 
is  designated  the  * '  foster  parent. ' '  A  vol- 
untary adoption  is  any  other  than  that  of 
an  indigent  child,  or  one  who  is  a  public 
charge  from  an  orphan  asylum  or  chari- 
table institution. 

An  adult  unmarried  person,  or  an  adult 
husband  or  wife,  or  an  adult  husband  and 
his  adult  wife  together,  may  adopt  a  minor 
in  pursuance  of  this  article,  and  a  child 
shall  not  hereafter  be  adopted  except  in 
pursuance  thereof.  Proof  of  the  lawful 
adoption  of  a  minor  heretofore  made  may 
be  received  in  evidence,  and  any  such 
adoption  shall  not  be  abrogated  by  the 
enactment  of  this  chapter  (chapter  19, 

42 


THE  ADOPTION  OF  CHILDREN       43 

Laws  of  1909),  and  shall  have  the  effect  of 
an  adoption  hereunder.  Nothing  in  this 
article  in  regard  to  an  adopted  child  in- 
heriting from  the  foster  parent  applies  to 
any  will,  devise  or  trust  made  or  created 
before  June  twenty-fifth,  eighteen  hundred 
and  seventy-three,  or  alters,  changes  or  in- 
terferes with  such  will,  devise  or  trust,  and 
as  to  any  such  will,  devise  or  trust,  a  child 
adopted  before  that  date  is  not  an  heir  so 
as  to  alter  estates  or  trusts  or  devises  in 
wills  so  made  or  created. 

Whose  Consent  is  Necessary. — Consent 
to  adoption  is  necessary,  as  follows: 

1.  Of  the  minor,  if  over  twelve  years  of 
age; 

2.  Of  the  foster  parent's  husband  or 
wife,  unless  lawfully  separated,  or  unless 
they  jointly  adopt  such  minor; 

3.  Of  the  parents  or  the  surviving  parent 
of  a  legitimate  child,  and  of  the  mother  of 
an  illegitimate  child;  but  the  consent  of  a 
parent  who  has  abandoned  the  child,  or 
is  deprived  of  civil  rights,  or  divorced  be- 
cause of  his  or  her  adultery  or  cruelty,  or 
judged  to  be  insane,  or  to  be  an  habitual 
drunkard,  or  judicially  deprived  of  the  cus- 
tody of  the  child  on  account  of  cruelty  or 
neglect,  is  unnecessary; 

4.  Of  a  person  of  full  age  having  the 
lawful  custody  of  the  child,  if  any  such 


44      WOMAN  AND  NEW  YOKK  LAW 

person  can  be  found,  where  the  child  has 
no  father  or  mother  living,  or  no  father  or 
mother  whose  consent  is  necessary  under 
the  last  subdivision.  If  such  a  child  has 
no  father  or  mother  living,  and  no  person 
can  be  found  who  has  the  lawful  custody 
of  the  child,  the  judge  or  surrogate  shall 
recite  such  facts  in  the  order  allowing  the 
adoption. 

Requisites  for  Voluntary  Adoption. — In 
adoption  the  following  requirements  must 
be  followed : 

1.  The   foster   parents   or   parent,    the 
minor  and  all  the  persons  whose  consent 
is  necessary  under  the  last  section,  must 
appear  before  the  county  judge  or  surro- 
gate of  the  county  where  the  foster  parent 
or  parents  reside,  and  be  examined  by  such 
judge  or  surrogate,  except  as  provided  by 
the  next  subdivision. 

2.  They  must  present  to  such  judge  or 
surrogate  an  instrument  containing  sub- 
stantially the  consents  required  by  this 
chapter,  an  agreement  on  the  part  of  the 
foster  parent  or  parents  to  adopt  and  treat 
the  minor  as  his,  her  or  their  own  lawful 
child,  and  a  statement  of  the  age  of  the 
child,  as  nearly  as  the  same  can  be  ascer- 
tained, which   statement   shall  be  taken 
prima  facie  as  true.    The  instrument  must 
be  signed  by  the  foster  parent  or  parents 


THE  ADOPTION  OF  CHILDEEN      45 

and  by  each  person  whose  consent  is  neces- 
sary to  the  adoption,  and  severally  ac- 
knowledged by  said  persons  before  such 
judge  or  surrogate;  but  where  a  parent  or 
person  or  institution  having  the  legal  cus- 
tody of  the  minor  resides  in  some  other 
country,  state  or  county,  his  or  their  writ- 
ten acknowledged  consent,  or  the  written 
acknowledged  consent  of  the  officers  of 
such  institution,  certified  as  conveyances 
are  required  to  be  certified  to  entitle  them 
to  record  in  a  county  of  this  State,  is 
equivalent  to  his  or  their  appearance  and 
execution  of  such  instrument. 

The  Order. — If  satisfied  that  the  moral 
and  temporal  interests  of  the  child  will  be 
promoted  thereby,  the  judge  or  surrogate 
must  make  an  order  allowing  and  confirm- 
ing such  adoption,  reciting  the  reasons 
therefor,  and  directing  that  the  minor  shall 
thenceforth  be  regarded  and  treated  in  all 
respects  as  the  child  of  the  foster  parent 
or  parents.  Such  order  and  the  instrument 
and  consent,  if  any,  mentioned  in  the  last 
section  must  be  filed  and  recorded  in  the 
office  of  the  county  clerk  of  such  county. 

The  Effect  of  Adoption.— Thereafter  the 
parents  of  the  minor  are  relieved  of  all 
parental  duties  toward,  and  of  all  respon- 
sibility for,  and  have  no  rights  over  such 
child,  or  to  its  property  by  descent  or  sue- 


46      WOMAN  AND  NEW  YORK  LAW 

cession.  Where  a  parent  who  has  procured 
a  divorce,  or  a  surviving  parent,  having 
lawful  custody  of  a  child,  lawfully  marries 
again,  or  where  an  adult  unmarried  person 
who  has  become  a  foster  parent  and  has 
lawful  custody  of  a  child,  marries,  and 
such  parent  consents  that  the  person  who 
thus  becomes  the  stepfather  or  the  step- 
mother of  such  child  may  adopt  such  child, 
such  parent  or  such  foster  parent,  so  con- 
senting, shall  not  thereby  be  relieved  of 
any  of  his  or  her  parental  duties  toward, 
or  be  deprived  of  any  of  his  or  her  rights 
over  said  child,  or  to  his  property  by  de- 
scent or  succession.  The  child  takes  the 
name  of  the  foster  parent.  His  rights  of 
inheritance  and  succession  from  his  nat- 
ural parents  remain  unaffected  by  such 
adoption.  The  foster  parent  or  parents 
and  the  minor  sustain  toward  each  other 
the  legal  relation  of  parent  and  child,  and 
have  all  the  rights  and  are  subject  to  all 
the  duties  of  that  relation,  including  the 
right  of  inheritance  from  each  other,  ex- 
cept as  the  same  is  affected  by  the  pro- 
visions in  this  section  in  relation  to  adop- 
tion by  a  stepfather  or  a  stepmother,  and 
such  right  of  inheritance  extends  to  the 
heirs  and  next  of  kin  of  the  minor,  and 
such  heirs  and  next  of  kin  shall  be  the 
same  as  if  he  were  the  legitimate  child  of 


THE  ADOPTION  OF  CHILDREN       47 

the  person  adopting,  but  as  respects  the 
passing  and  limitation  over  of  real  or  per 
sonal  property  dependent  under  the  pro- 
visions of  any  instrument  on  the  foster 
parent  dying  without  heirs,  the  minor  is 
not  deemed  the  child  of  the  foster  parent 
so  as  to  defeat  the  rights  of  remaindermen. 

Abrogation  of  Voluntary  Adoption. — A 
minor  may  be  deprived  of  the  rights  of 
voluntary  adoption  by  the  following  pro- 
ceedings only: 

The  foster  parent,  the  minor  and  the 
persons  whose  consent  would  be  necessary 
to  an  original  adoption,  must  appear  be- 
fore the  county  judge  or  surrogate  of  the 
county  where  the  foster  parent  resides, 
who  shall  conduct  an  examination  as  for 
an  original  adoption.  If  he  is  satisfied 
that  the  abrogation  of  the  adoption  is  de- 
sired by  all  parties  concerned,  and  will  be 
for  the  best  interests  of  the  minor,  the 
foster  parent,  the  minor,  if  over  twelve 
years  of  age,  and  the  persons  whose  con- 
sent would  have  been  necessary  to  an  orig- 
inal adoption  shall  execute  an  agreement, 
whereby  the  foster  parent  agrees,  or 
whereby  the  foster  parent  and  minor,  if 
the  latter  is  above  the  age  of  twelve  years 
and  therefore  a  necessary  party  as  above 
required,  agree  to  relinquish  the  relation 
cf  parent  and  child  and  all  rights  acquired 


48      WOMAN  AND  NEW  YORK  LAW 

by  such  adoption,  and  the  parents  or 
guardian  of  the  child  or  the  institution 
having  the  custody  thereof  agree  to  re- 
sume such  relation.  The  judge  or  surro- 
gate shall  endorse,  upon  such  agreement, 
his  consent  to  the  abrogation  of  the  adop- 
tion. The  agreement  and  consent  shall  be 
filed  and  recorded  in  the  office  of  the 
county  clerk  of  the  county  where  the  foster 
parent  resides,  and  a  copy  thereof  filed  and 
recorded  in  the  office  of  the  county  clerk 
of  the  county  where  the  parents  or  guard- 
ian reside,  or  such  institution  is  located,  if 
they  reside,  or  such  institution  is  located, 
within  this  State.  From  the  time  of  the 
filing  and  recording  thereof,  the  adoption 
shall  be  abrogated,  and  the  child  shall  re- 
assume  its  original  name  and  the  parents 
or  guardian  of  the  child  shall  reassume 
such  relation.  Such  child,  however,  may 
be  adopted  directly  from  such  foster 
parents  by  another  person  in  the  same 
manner  as  from  parents,  and  as  if  such 
foster  parents  were  the  parents  of  such 
child. 


PART  II 

THE  PROPERTY    RELATIONS  OF 
WOMEN 


CERTAIN  RIGHTS  AND  LIABILITIES 
OF  HUSBAND  AND  WIFE 

The  Property  of  a  Married  Woman.— 

Property,  real  and  personal,  now  owned  by 
a  married  woman,  or  hereafter  owned  by 
a  woman  at  the  time  of  her  marriage,  or 
acquired  by  her  as  prescribed  in  this  chap- 
ter, and  the  rents,  issues,  proceeds  and 
profits  thereof,  shall  continue  to  be  her 
sole  and  separate  property  as  if  she  were 
unmarried,  and  shall  not  be  subject  to  her 
husband's  control  or  disposal  nor  liable  for 
his  debts. 

The  act  for  the  protection  of  the  prop- 
erty of  a  married  woman  has  worked  a 
radical  change  in  the  marital  rights  of  the 
husband.  His  old  common  law  right  to 
the  personal  estate  of  the  wife,  and  the  use 
of  her  real  estate,  has  gone.  He  has  no 
estate,  or  interest  or  right  whatever,  abso- 
lute or  contingent,  except  that,  upon  the 
death  of  the  wife,  after  issue  born,  with- 
out exercising  the  right  of  disposal,  a  hus- 
band has  the  estate  for  his  life  as  tenant 
by  the  courtesy.  A  married  woman  may 
now  hold  her  estate  for  life  free  of  all  con- 
trol over  or  power  of  disposal  by  her  hus- 

51 


52       WOMAN  AND  NEW  YOKE  LAW 

band,  and  may  convey  it  in  his  lifetime  or 
devise  it  by  will  to  take  effect  on  her  death 
to  whomsoever  she  pleases.  The  legisla- 
ture intended  to  remove  the  entire  disabil- 
ity which  the  common  law  and  the  statute 
had  thrown  around  married  women  not 
only  as  regards  their  right  to  take  and 
hold  free  and  independently  of  their  hus- 
bands, but  also  to  remove  the  obstacles 
which  the  law  had  interposed  against  their 
conveying  both  by  grant  and  devise,  and 
to  place  them,  so  far  as  the  lands  which 
they  held  in  their  own  right  was  con- 
cerned, on  the  same  basis,  precisely,  as  un- 
married females. 

The  Legal  Powers  of  a  Married  Woman. 
. — A  married  woman  has  all  the  rights  in 
respect  to  property,  real  or  personal,  and 
the  acquisition,  use,  enjoyment  and  dispo- 
sition thereof,  and  to  make  contracts  in 
respect  thereto  with  any  person,  including 
her  husband,  and  to  carry  on  any  business, 
trade  or  occupation,  and  to  exercise  all 
powers  and  enjoy  all  rights  in  respect 
thereto  and  in  respect  to  her  contracts,  and 
be  liable  on  such  contracts  as  if  she  were 
unmarried;  but  a  husband  and  wife  can 
not  contract  to  alter  or  dissolve  the  mar- 
riage or  to  relieve  the  husband  from  his 
liability  to  support  his  wife.  All  sums 
that  may  be  recovered  in  actions  or  special 


EIGHTS  OF  HUSBAND  AND  WIFE    53 

proceedings  by  a  married  woman  to  re- 
cover damages  to  her  person,  estate  or 
character  shall  be  the  separate  property  of 
the  wife.  Judgment  for  or  against  a  mar- 
ried woman  may  be  rendered  and  enforced 
in  a  court  of  record,  or  not  of  record,  as  if 
she  was  single. 

A  married  woman  who  is  possessed  of  a 
separate  estate,  and  engaged  in  a  separate 
business,  may  employ  her  husband  as 
agent  to  carry  on  the  same,  and  may  agree 
with  him  to  compensate  him  for  his  serv- 
ices. In  such  a  case  the  wife  is  responsi- 
ble for  the  acts  of  her  husband  done  as  her 
agent  in  the  management  of  her  estate.  A 
married  woman  may  appoint  her  husband 
her  attorney  in  fact;  and  a  conveyance  of 
her  property  by  him  under  a  power  of  at- 
torney given  him  by  her  is  good  even  to 
carrying  her  dower  right  with  it. 

Responsibility  of  Married  Women  for 
Acts  of  Agents. — Married  women  owe  the 
same  duty  to  those  with  whom  they  deal 
and  may  be  bound  in  the  same  manner  as 
if  unmarried;  where  they  clothe  others 
with  apparent  authority  to  act  for  them 
they  are  estopped  from  denying  it  where 
others  have  been  induced  to  act  on  the 
faith  of  it.  The  possession  of  real  estate 
by  a  married  woman  is  not  lost  or  im- 
paired by  permitting  her  husband  to  exer- 


54      WOMAN  AND  NEW  YOKE  LAW 

else  acts  of  care  or  agency  with  respect  to 
it,  or  by  his  occupancy  of  it,  as  the  head 
of  the  family,  for  the  family  residence. 
There  is  nothing  in  the  marriage  relation 
which  forbids  the  wife  to  employ  her  hus- 
band as  her  agent  in  the  management  of 
her  property,  nor  does  such  employment 
subject  her  property  or  its  profits  to  the 
claims  of  her  husband's  creditors. 

Liability  for  Torts  of  Husband. — A  tort 
is  a  wrong  upon  which  an  action  at  law 
can  be  based.  A  married  woman  is  liable 
for  fraud  committed  by  her  in  dealing 
with  her  separate  property,  or  by  her  hus- 
band as  her  agent,  as  an  individual  capable 
in  all  respects  of  acting  in  her  own  right; 
but  prior  assent  or  authorization  by  her, 
or  passive  acquiescence  at  the  time,  does 
not  make  her  liable  for  a  tort  of  her  hus- 
band in  which  she  takes  no  active  part  or 
by  which  neither  she  nor  her  separate 
property  is  benefited.  The  circumstance 
that  the  fraud  was  committed  by  the  hus- 
band, acting  as  the  wife's  agent,  does  not 
impair  her  liability;  she  is  liable  in  the 
same  manner  for  frauds  or  torts  committed 
in  the  management  of  her  property  as  she 
is  upon  contracts  relating  to  it,  and  just 
as  liable  for  fraudulent  representations 
upon  the  sale  of  it  as  upon  a  covenant  for 
quiet  enjoyment;  she  may  be  sued  therefor 


EIGHTS  OF  HUSBAND  AND  WIFE    55 

as  if  a  feme  sole,  nor  need  the  husband  be 
joined. 

Liability  of  Married  Woman  on  Promis- 
sory Notes. — A  married  woman  is  liable 
upon  a  several  promissory  note  given  by 
herself  and  husband  regardless  of  the  pur- 
poses for  which  the  money  was  expended. 
Where  a  married  woman  procures  an  in- 
dorsement of  a  note  made  by  her  for  the 
use  of  her  separate  estate  she  is  liable  to 
such  indorser  for  the  amount  paid  by  him 
on  her  failure  to  pay  at  maturity,  even  if 
the  proceeds  of  the  note  were  not  used  for 
the  purposes  intended. 

Contracts  of  Married  Woman  Not  to 
Bind  Husband. — A  contract  made  by  a 
married  woman  does  not  bind  her  husband 
or  his  property. 

The  husband  is  bound  for  the  supply  of 
necessaries  to  his  wife,  so  long  as  she  is 
not  guilty  of  adultery  or  elopement.  The 
husband  may  discharge  this  obligation  by 
supplying  her  himself  or  by  his  agents,  or 
by  giving  her  an  adequate  allowance  in 
money,  in  which  case  he  is  not  liable  to  a 
tradesman  who,  without  his  authority,  fur- 
nishes her  with  necessaries.  Where  a  wife 
purchases  groceries  for  the  use  of  the  fam- 
ily, the  presumption  is  that  she  acts  as  the 
agent  of  the  husband,  and  he  alone  is  liable 
for  the  amount;  but  to  entitle  a  tradesman 


56       WOMAN  AND  NEW  YORK  LAW 

to  recover  as  against  the  husband  it  must 
appear  that  the  goods  were  supplied  to  the 
wife  upon  the  husband's  credit  and  the 
presumption  that  the  wife  was  acting  as 
her  husband's  agent  is  overcome  by  the 
fact  that  credit  was  given  to  her.  It  must 
be  shown  that  the  goods  so  furnished  are 
suitable  to  the  wife's  position  and  neces- 
sary to  her  maintenance,  and  that  she  is 
not  otherwise  provided  for.  Where  the 
husband  has  given  a  tradesman  notice  not 
to  supply  his  wife  with  goods,  the  burden 
is  upon  the  tradesman  to  show  that  the 
goods  sold  were  necessary  and  were  not 
provided  by  the  husband.  Where  a  mar- 
ried woman  purchases  groceries  to  be  used 
for  the  family,  and  expressly  promises  to 
pay  for  the  same,  stating  that  she  owns 
real  estate,  she  is  obliged  to  pay  for  them 
although  she  does  not  expressly  charge  her 
separate  estate  with  such  payment. 

While,  in  the  absence  of  any  contract 
with  the  wife,  the  common  law  liability  of 
the  husband  for  her  suitable  support  still 
exists,  if  she  avails  herself  of  the  powers 
conferred  by  the  statute,  by  making  an  ex- 
press contract  in  her  own  name  even  for 
her  necessary  support,  she  will  not  be 
deemed  as  acting  as  agent  for  her  husband, 
nor  will  there  be  an  implied  agreement  on 
his  part  to  pay  for  such  necessaries.  A 


EIGHTS  OF  HUSBAND  AND  WIFE    57 

hotel-keeper  may  maintain  a  claim  of  lien 
on  the  property  of  a  wife  for  the  board  of 
husband  and  wife  by  showing  that  she  was 
the  head  of  the  family,  the  one  trusted, 
and  had  money  and  credit  and  her  husband 
had  none.  In  the  absence  of  an  express 
agreement  by  the  wife  to  charge  her  sep- 
arate estate  for  medical  services  the  legal 
inference  is  that  she  acts  as  agent  of  her 
husband. 

"Where  husband  and  wife  are  living 
apart  the  presumption  that  she  is  author- 
ized to  charge  him  with  purchases  by  her 
ceases;  and  to  recover  therefor  the  plain- 
tiff must  set  up  that  they  were  necessaries, 
and  that  the  husband  did  not  supply  them 
or  furnish  his  wife  money  with  which  to 
purchase  them.  The  rule  is  that  during 
cohabitation  the  assent  of  the  husband  is 
presumed,  but  when  they  are  living  apart 
the  burden  is  upon  the  person  furnishing 
the  necessities  to  show  that  the  circum- 
stances are  such  as  to  render  the  husband 
liable.  The  rule  seems  to  be  that  the  hus- 
band in  case  of  voluntary  separation  has 
an  alternative;  he  may  trust  his  wife  with 
a  sufficient  allowance,  or  he  may  trust  her 
to  pledge  his  credit  for  what  she  deems  is 
necessary.  If  he  trusts  her  with  the 
money,  he  is  not  liable  for  that  money;  if 
he  trusts  her  to  buy  in  his  name,  it  may  be 


58       WOMAN  AND  NEW  YORK  LAW 

presumed  that  she  has  the  right  to  pledge 
his  credit. 

Where  a  husband  abandons  his  wife  and 
minor  children  and  fails  to  support  them, 
the  wife  has  a  right  to  bind  his  credit  for 
all  necessaries  supplied  to  her  and  the 
children.  Where  a  wife  leaves  her  hus- 
band in  consequence  of  his  adultery,  she 
is  entitled  to  her  support  from  him,  and  he 
is  liable  for  necessaries  furnished  her,  al- 
though he  forbid  all  persons  trusting  on 
his  account;  such  conduct  of  the  husband 
is  equivalent  to  turning  the  wife  away.  In 
a  case  where  the  wife  of  the  defendant  left 
him  against  his  will  and  without  cause  and 
went  to  live  with  her  mother,  and  it  was 
shown  that  the  defendant  was  able  and 
willing  to  furnish  her  with  proper  main- 
tenance if  she  would  live  with  him  and  he 
never  promised  to  maintain  her  separate 
from  him,  the  husband  was  held  not  to  be 
liable  for  necessaries  furnished  the  wife. 

Husband  and  Wife  May  Convey  to  Each 
Other  or  Make  Partition. — Husband  and 
wife  may  convey  or  transfer  real  or  per- 
sonal property  directly,  the  one  to  the 
other,  without  the  intervention  of  a  third 
person;  and  may  make  partition  or  divi- 
sion of  any  real  property  held  by  them  as 
tenants  in  common,  joint  tenants  or  ten- 
ants by  the  entireties.  If  so  expressed  in 


EIGHTS  OF  HUSBAND  AND  WIFE    59 

the  instrument  of  partition  or  division, 
such  instrument  bars  the  wife's  right  to 
dower  in  such  property  and  also  if  so 
expressed,  the  husband's  tenancy  by 
courtesy. 

Insurance  of  Husband's  Life. — A  mar- 
ried woman  may,  in  her  own  name,  or  in 
the  name  of  a  third  person,  with  his  con- 
sent, as  her  trustee,  cause  the  life  of  her 
husband  to  be  insured  for  a  definite  period 
or  for  the  term  of  his  natural  life.  Where 
a  married  woman  survives  such  period  or 
term  she  is  entitled  to  receive  the  insur- 
ance money,  payable  by  the  terms  of  the 
policy,  as  her  separate  property,  and  free 
from  any  claim  of  a  creditor  or  representa- 
tive of  her  husband,  except,  that  where 
the  premium  actually  paid  annually  out 
of  the  husband's  property  exceeds  five 
hundred  dollars,  that  portion  of  the  insur- 
ance money  which  is  purchased  by  excess 
of  premium  above  five  hundred  dollars  is 
primarily  liable  for  the  husband's  debts. 
The  policy  may  provide  that  the  insurance, 
if  the  married  woman  dies  before  it  be- 
comes due  and  without  disposing  of  it, 
shall  be  paid  to  her  husband  or  to  his,  her, 
or  their  children,  or  to  or  for  the  use  of 
one  or  more  of  those  persons;  and  it  may 
designate  one  or  more  trustees  for  a  child 
or  children  to  receive  and  manage  such 


60      WOMAN  AND  NEW  YOKK  LAW 

money  until  such  child  or  children  attain 
full  age.  The  married  woman  may  dispose 
of  such  policy  by  will  or  written  acknowl- 
edged assignment  to  take  effect  on  her 
death,  if  she  dies  thereafter  leaving  no  de- 
scendants surviving.  After  the  will  or  as- 
signment takes  effect  the  legatee  or  as- 
signee takes  such  policy  absolutely.  A 
policy  of  insurance  on  the  life  of  any  per- 
son for  the  benefit  of  a  married  woman  is 
also  assignable  and  may  be  surrendered  to 
the  company  issuing  the  same  by  her,  or 
her  legal  representative,  with  the  written 
consent  of  the  assured.  The  statute  ap- 
plies to  policies  issued  by  foreign  insur- 
ance companies.  In  such  cases  the  con- 
tract between  the  corporation  and  the 
assured,  it  seems,  would  be  governed  by 
the  laws  of  the  State  of  its  origin,  but  the 
validity  of  the  assignment  depends  upon 
the  capacity  of  the  assignor  to  make  it 
under  the  laws  of  this  State. 

The  legislature  intended  by  this  act 
that  such  policies  should  not  be  subject  to 
the  lien  of  creditors,  either  of  the  husband 
or  of  the  wife,  to  the  former  by  the  ex- 
pressed words  of  the  statute,  as  to  the 
latter  by  the  determination  of  the  courts. 
A  creditor  of  the  wife  cannot  compel  her 
to  make  an  assignment  of  the  policy.  But 
upon  the  husband's  death  and  upon  the 


EIGHTS  OF  HUSBAND  AND  WIFE    61 

vesting  in  the  wife  of  her  interest  in  the 
policy  no  exemption  attaches  in  favor  of 
the  wife  as  against  her  creditors  before  or 
after  the  money  has  been  paid  to  her. 

When  a  Married  Woman  is  a  Party. — In 
an  action  at  law  or  a  special  proceeding  a 
married  woman  appears,  prosecutes  or  de- 
fends alone  or  joined  with  other  parties  as 
if  she  were  single.  It  is  not  necessary  or 
proper  to  join  her  husband  with  her  as  a 
party  in  any  action  or  special  proceeding 
affecting  her  separate  property.  The  hus- 
band is  not  a  necessary  or  proper  party  to 
an  action  or  special  proceeding  to  recover 
damages  to  the  person,  estate  or  character 
of  his  wife.  The  husband  is  not  a  neces- 
sary or  proper  party  to  action  or  special 
proceeding  to  recover  damages  to  the  per- 
son, estate  or  character  of  another  on  ac- 
count of  the  wrongful  acts  of  his  wife  com- 
mitted without  his  instigation. 

Right  of  Action  By  or  Against  Married 
Woman  for  Torts. — A  married  woman  has 
a  right  of  action  for  an  injury  to  her  per- 
son, property  or  character  or  for  an  injury 
arising  out  of  the  marital  relation,  as  if 
unmarried.  She  is  liable  for  her  wrongful 
or  tortious  acts;  her  husband  is  not  liable 
for  such  acts  unless  they  were  done  by  his 
actual  coercion  or  instigation;  and  such 
coercion  or  instigation  shall  not  be  pre- 


62      WOMAN  AND  NEW  YOEK  LAW 

sumed,  but  must  be  proved.  This  pro- 
vision does  not  affect  any  right,  cause  of 
action  or  defense  existing  before  the  eigh- 
teenth day  of  March,  eighteen  hundred  and 
ninety. 

Compelling  Transfer  of  Trust  Property. 
— A  person  who  holds  property  as  trustee 
of  a  married  woman,  under  a  deed  of  con- 
veyance or  otherwise,  may,  on  the  written 
request  of  such  married  woman,  accom- 
panied by  a  certificate  of  a  justice  of  the 
supreme  court,  that  he  has  examined  the 
condition  and  situation  of  the  property, 
and  made  inquiry  into  the  capacity  of  such 
married  woman  to  manage  and  control  the 
same,  convey  to  such  married  woman  all 
or  any  portion  of  such  property,  or  the 
rents,  issues  and  profits  thereof. 

Married  Woman's  Right  of  Action  for 
Wages. — A  married  woman  shall  have  a 
cause  of  action  in  her  own  sole  and  sep- 
arate right  for  all  wages,  salary,  profits, 
compensation  or  other  remuneration  for 
which  she  may  render  work,  labor  or  serv- 
ices, or  which  may  be  derived  from  any 
trade,  business  or  occupation  carried  on  by 
her,  and  her  husband  shall  have  no  right 
of  action  therefor  unless  she  or  he  with 
her  knowledge  and  consent  has  otherwise 
expressly  agreed  with  the  person  obligated 
to  pay  such  wages,  salary,  profits,  compen- 


EIGHTS  OF  HUSBAND  AND  WIFE    63 

sation  or  other  remuneration.  In  any  action 
or  proceeding  in  which  a  married  woman  or 
her  husband  shall  seek  to  recover  wages, 
salary,  profits,  compensation  or  other 
remuneration  for  which  such  married 
woman  has  rendered  work,  labor  or  serv- 
ices or  which  was  derived  from  any  trade, 
business  or  occupation  carried  on  by  her 
or  in  which  the  loss  of  such  wages,  salary, 
profits,  compensation  or  other  remunera- 
tion shall  be  an  item  of  damage  claimed 
by  a  married  woman  or  her  husband,  the 
presumption  of  law  in  all  such  cases  shall 
be  that  such  married  woman  is  alone  en- 
titled thereto,  unless  the  contrary  expressly 
appears.  This  provision  does  not  affect 
any  right,  cause  of  action  or  defense  exist- 
ing prior  to  May  seventeenth,  nineteen 
hundred  and  five. 

Right  of  Husband  to  Wife's  Services. — 
The  legislation  upon  the  subject  of  the 
rights  of  married  women  has  only  resulted 
in  abrogating  their  common  law  status  to 
the  extent  set  forth  in  the  various  statutes ; 
they  have  not  by  express  provision,  nor  by 
implication,  deprived  the  husband  of  his 
common  law  right  to  avail  himself  of  a 
profit  or  benefit  from  her  services.  A  con- 
tract made  between  a  man  and  a  woman 
before  they  were  married,  which  related 
solely  to  personal  services  to  be  rendered 


64       WOMAN  AND  NEW  YOEK  LAW 

by  the  woman  for  a  consideration  named, 
is  merged  in  the  marriage  contract  which 
implied  that  her  services  should  belong  to 
him  without  other  compensation  than  sup- 
port and  the  discharge  of  the  marital  obli- 
gations, and  she  can  recover  only  for  serv- 
ices performed  to  the  date  of  the  marriage. 


DOWER 

THE  great  English  jurist,  Lord  Coke, 
once  said :  * '  There  be  three  things 
highly  favored  in  law — life,  liberty  and 
dower." 

The  estate  of  dower  as  it  now  exists  in 
New  York  is  regulated  by  statute,  which 
provides  as  follows: 

A  widow  shall  be  endowed  of  the  third 
part  of  all  the  lands  whereof  her  husband 
was  seized  of  an  estate  of  inheritance,  at 
any  time  during  the  marriage. 

Dower  is  one  of  the  estates  most  favored 
by  the  law,  and  the  tendency  of  the  de- 
cisions has  always  been  to  preserve  it  for 
the  wife,  if  this  may  be  done.  Title  vested 
in  the  husband  will  constitute  seizing  with- 
in the  meaning  of  the  statute,  and  a  widow 
in  order  to  maintain  an  action  to  recover 
dower  in  certain  property  need  not  prove 
that  her  husband  was  in  actual  possession 
of  such  property.  A  mere  trust  estate  of 
the  husband  is  not  subject  to  dower.  A 
widow  is  entitled  to  dower  in  land  con- 
veyed by  her  husband  according  to  its 
value  at  the  time  of  alienation.  She  is  en- 
titled to  crops  growing  on  the  land  as- 
signed to  her  for  dower,  but  her  claim  is 

65 


66       WOMAN  AND  NEW  YOEK  LAW 

subject  to  liens  upon  the  property  at  the 
time  when  the  husband  became  seized 
thereof.  Where  a  conveyance  by  a  hus- 
band is  set  aside  because  it  was  fraudu- 
lent as  to  his  creditors,  the  dower  interest 
of  his  wife,  which  was  cut  off  by  her 
uniting  in  the  fraudulent  deed,  is  restored 
to  her,  and  after  the  death  of  her  husband 
she  may  recover  her  dower  in  the  premises. 

Dower  in  Lands  Exchanged. — If  a  hus- 
band seized  of  an  estate  of  inheritance  in 
lands,  exchanges  them  for  other  lands,  his 
widow  shall  not  have  dower  of  both,  but 
she  must  make  her  election,  to  be  endowed 
of  the  lands  given,  or  of  those  taken  in  ex- 
change; and  if  her  election  be  not  evinced 
by  the  commencement  of  an  action  to  re- 
cover her  dower  of  the  lands  given  in  -ex- 
change, within  one  year  after  the  death  of 
her  husband,  she  is  deemed  to  have  elected 
to  take  her  dower  of  the  lands  received  in 
exchange.  "  Exchange  "  as  used  in  this 
section  means  a  mutual  grant  of  equal  in- 
terests, the  one  in  consideration  of  the 
other. 

Dower  in  Lands  Mortgaged  Before  Mar- 
riage.— Where  a  person  seized  of  an  estate 
of  inheritance  in  lands,  executes  a  mort- 
gage thereof,  before  marriage,  his  widow 
is,  nevertheless,  entitled  to  dower  of  the 
lands  mortgaged,  as  against  every  person 


DOWER  67 

except  the  mortgagee  and  those  claiming 
under  him. 

Dower  in  Lands  Mortgaged  for  Purchase 
Money. — Where  a  husband  purchases  lands 
during  the  marriage,  and  at  the  same  time 
mortgages  his  estate  in  those  lands,  to 
secure  the  payment  of  the  purchase  money, 
his  widow  is  not  entitled  to  dower  of  those 
lands,  as  against  the  mortgagee  or  those 
claiming  under  him,  although  she  did  not 
unite  in  the  mortgage.  She  is  entitled  to 
her  dower  as  against  every  other  person. 

Surplus  Proceeds  of  Sale  Under  Pur- 
chase-Money Mortgages. — Where,  in  a  case 
specified  in  the  last  section,  the  mortgagee, 
or  .a  person  claiming  under  him,  causes  the 
land  mortgaged  to  be  sold,  after  the  death 
of  the  husband,  either  under  a  power  of 
sale  contained  in  the  mortgage,  or  by 
virtue  of  a  judgment  in  an  action  to  fore- 
close the  mortgage,  and  any  surplus  re- 
mains, after  payment  of  the  money  due  on 
the  mortgage  and  the  costs  and  charges  of 
the  sale,  the  widow  is  nevertheless  entitled 
to  the  interest  or  income  of  one-third  part 
of  the  surplus  for  her  life  as  her  dower. 

Widow  of  Mortgagee  is  Not  Endowed. — 
A  widow  shall  not  be  endowed  of  the  lands 
conveyed  to  her  husband  by  way  of  mort- 
gage, unless  he  acquires  an  absolute  estate 
therein  during  the  marriage. 


68      WOMAN  AND  NEW  YORK  LAW 

When  Dower  is  Barred  by  Misconduct. 

— In  case  of  a  divorce,  dissolving  the  mar- 
riage contract  for  the  misconduct  of  the 
wife,  she  shall  not  be  endowed.  A  divorce 
dissolving  the  marriage  contract  on  the 
ground  of  the  adultery  of  the  husband  does 
not  deprive  the  wife  of  her  right  of  dower 
in  his  real  estate.  The  effect  of  divorces 
granted  in  other  States  upon  the  land  of 
the  husband  in  this  State  is  to  be  deter- 
mined by  the  laws  of  this  State. 

When  Dower  is  Barred  by  Jointure. — 
"Where  an  estate  in  real  property  is  con- 
veyed to  a  person  and  his  intended  wife, 
or  to  the  intended  wife  alone,  or  to  a  per- 
son in  trust  for  them  or  for  the  intended 
wife  alone,  for  the  purpose  of  creating  a 
jointure  for  her,  and  with  her  assent,  the 
jointure  bars  her  right  or  claim  of  dower 
in  all  the  lands  of  the  husband.  The 
assent  of  the  wife  to  such  a  jointure  is 
evidenced,  if  she  be  of  full  age,  by  her 
becoming  a  party  to  the  conveyance  by 
which  it  is  settled;  if  she  be  a  minor,  by 
her  joining  with  her  father  or  guardian  in 
that  conveyance. 

When  Dower  is  Barred  by  Pecuniary 
Provisions.  —  Any  pecuniary  provision 
made  for  the  benefit  of  an  intended  wife 
and  in  lieu  of  dower,  if  assented  to  by  her 
as  prescribed  in  the  last  section,  bars  her 


DOWEK  69 

right  or  claim  of  dower  in  all  the  lands  of 
her  husband.  The  widow  is  not  bound  by 
an  ante-nuptial  agreement  where  the  hus- 
band repudiated  the  same  in  his  lifetime. 
If  there  is  any  reasonable  doubt  as  to 
whether  an  ante-nuptial  agreement  was 
made  in  lieu  of  dower,  the  widow  will  take 
both. 

When  a  Widow  is  to  Elect  Between 
Jointure  and  Dower. — If,  before  the  mar- 
riage, but  without  her  assent,  or  if,  after 
the  marriage,  real  property  is  given  or 
assured  for  the  jointure  of  a  wife,  or  a 
pecuniary  provision  is  made  for  her,  in 
lieu  of  dower,  she  must  make  her  election 
whether  she  will  take  the  jointure  or  pe- 
cuniary provision,  or  be  endowed  of  the 
lands  of  her  husband;  but  she  is  not  en- 
titled to  both. 

Her  Election  Between  Devise  and  Dower. 
— If  real  property  is  devised  to  a  woman, 
or  a  pecuniary  or  other  provision  is  made 
for  her  by  will  in  lieu  of  dower,  she  must 
make  her  election  whether  she  will  take 
the  property  so  devised,  or  the  provision 
so  made,  or  be  endowed  of  the  lands  of 
her  husband;  but  she  is  not  entitled  to 
both. 

Where  a  claim  of  dower  is  inconsistent 
with  the  provisions  of  a  will,  the  widow  is 
put  to  her  election,  although  there  is  no 


70       WOMAN  AND  NEW  YOEK  LAW 

provision  that  the  legacy  to  the  wife  is 
intended  to  be  in  lieu  of  dower.  A  widow's 
election  is  not  binding  unless  made  with 
full  knowledge  of  the  circumstances,  and 
with  the  intention  of  electing. 

When  She  is  Deemed  to  Have  Elected. — 
Where  a  woman  is  entitled  to  an  election, 
as  prescribed  in  either  of  the  last  two  sec- 
tions, she  is  deemed  to  have  elected  to  take 
the  jointure,  devise  or  pecuniary  provision, 
unless  within  one  year  after  the  death  of 
her  husband  she  enters  upon  the  lands  as- 
signed to  her  for  dower,  or  commences  an 
action  for  her  dower.  But  during  such 
period  of  one  year  after  the  death  of  her 
said  husband,  her  time  to  make  such  elec- 
tion may  be  enlarged  by  the  order  of  any 
court  competent  to  pass  on  the  accounts  of 
executors,  administrators  or  testamentary 
trustees,  or  to  admeasure  dower,  or  on  an 
affidavit  showing  the  pendancy  of  a  pro- 
ceeding to  contest  the  probate  containing 
such  jointure,  devise  or  pecuniary  pro- 
vision, or  of  an  action  to  construe  or  set 
aside  such  will,  or  that  the  amount  of 
claims  against  the  estate  of  the  testator 
cannot  be  ascertained  within  the  period  so 
limited,  or  other  reasonable  cause,  and  on 
notice  given  to  such  persons,  and  in  such 
manner,  as  such  court  may  direct.  Such 
order  shall  be  indexed  and  recorded  in  the 


DOWER  71 

same  manner  as  a  notice  of  pendancy  of 
action  in  the  office  of  the  clerk  of  each 
county  wherein  the  real  property  or  a  por- 
tion thereof  affected  thereby  is  situated. 

The  power  of  election  is  purely  personal 
as  far  as  a  widow  is  concerned  and  does 
not  pass  to  her  legal  representatives. 

When  Provision  in  Lieu  of  Dower  is  For- 
feited.— Every  jointure,  devise  and  pe- 
cuniary provision  in  lieu  of  dower  is  for- 
feited by  the  woman  for  whose  benefit  it 
is  made  in  a  case  in  which  she  would  for- 
feit her  dower;  and  on  such  forfeiture,  an 
estate  so  conveyed  for  jointure,  or  devised, 
or  a  pecuniary  provision  so  made,  immedi- 
ately vests  in  the  person  or  legal  repre- 
sentative of  the  person  in  whom  they 
would  have  vested  on  the  determination  of 
her  interest  therein,  by^her  death. 

Effects  of  the  Acts  of  the  Husband. — An 
act,  deed  or  conveyance  executed  or  per- 
formed by  the  husband  without  the  assent 
of  his  wife,  evidenced  by  her  acknowledg- 
ment thereof,  in  the  manner  required  by 
law  to  pass  the  contingent  right  of  dower 
of  a  married  woman,  or  a  judgment  or  de- 
cree confessed  by  or  recovered  against 
him,  or  any  laches,  default,  covin,  or  crime 
of  a  husband,  does  not  prejudice  the  right 
of  his  wife  to  her  dower  or  jointure,  or  pre- 
clude her  from  the  recovery  thereof. 


72       WOMAN  AND  NEW  YOEK  LAW 

It  is  well  settled  that  after  dower  has 
once  attached,  it  cannot  be  extinguished 
or  suspended  by  any  act  of  the  husband 
alone  in  the  nature  of  alienage  or  charge. 

A  Widow's  Quarantine. — A  widow  may 
remain  in  the  chief  house  of  her  husband 
forty  days  after  his  death,  whether  her 
dower  is  sooner  assigned  to  her  or  not, 
without  being  liable  to  any  rent  for  the 
same;  and  in  the  meantime  she  may  have 
her  reasonable  sustenance  out  of  the  estate 
of  her  husband. 

The  application  of  this  section  is  limited 
to  lands  in  which  the  widow  has  a  right 
or  claim  of  dower. 

A  Divorced  Woman  May  Release  Dower. 
— A  woman  who  is  divorced  from  her  hus- 
band, whether  such  divorce  be  absolute  or 
limited,  or  granted  in  his  or  her  favor,  by 
any  court  of  competent  jurisdiction,  may 
release  to  him,  by  an  instrument  in  writing, 
sufficient  to  pass  title  to  real  estate,  her  in- 
choate right  of  dower  in  any  specific  real 
property  theretofore  owned  by  him,  or  gen- 
erally in  all  such  real  property,  and  such 
as  he  shall  thereafter  acquire. 

A  divorce  obtained  by  a  wife  in  another 
State  on  the  ground  of  cruelty,  without 
personal  service  upon  the  husband,  or  his 
appearance  in  the  action,  is  a  bar  to  her 
dower  in  lands  acquired  by  her  husband 


DOWER  73 

after  the  divorce  or  owned  at  that  time. 
Having  voluntarily  put  an  end  to  the  mar- 
riage relation  for  a  cause  deemed  in- 
adequate in  this  State,  public  policy  will 
not  be  promoted  by  allowing  her  claim  for 
dower. 

Married  Woman  May  Release  Dower  by 
Attorney. — A  married  woman  of  full  age 
may  release  her  inchoate  right  of  dower  in 
real  property  by  attorney  in  fact  in  any 
case  where  she  can  personally  release  the 
same. 


WILLS 

A  WILL  is  a  disposition  of  an  estate  by 
a  person  called  a  testator  (a  woman 
who  makes  a  will  is  technically  known  as 
a  testatrix),  to  take  effect  upon  his  or  her 
death.  A  woman  twenty-one  years  of  age, 
if  of  sound  mind,  may  dispose  of  her  real 
estate,  and  a  female  of  the  age  of  sixteen 
years  may  so  dispose  of  her  personal  prop- 
erty. A  married  woman  may  devise  and 
bequeath  her  property  in  the  same  manner 
as  if  unmarried.  A  will  executed  by  an 
unmarried  woman  shall  be  deemed  revoked 
by  her  subsequent  marriage. 

If  there  is  such  unsoundness  of  mind 
that  the  testator  has  not  sufficient  intelli- 
gence to  understand  what  she  is  doing  and 
the  legal  effect  of  the  instrument  she  is 
executing,  she  is  incapable  of  making  a 
valid  will.  The  great  Chancellor  Kent  laid 
down  the  rule  as  follows:  Neither  age  nor 
sickness  nor  extreme  distress  nor  debility 
of  body  will  affect  the  capacity  to  make  a 
will  if  sufficient  intelligence  remains. 

Wills  shall  be  in  writing,  but  special 
forms  are  not  required  in  drawing  a  will; 
it  is  enough  that  the  intention  of  the  tes- 

74 


WILLS  75 

tator  is  plainly  expressed.  The  execution 
of  a  will  shall  be  accompanied  by  certain 
formalities  which  are  regulated  by  statute, 
to  the  intent  that,  as  the  will  is  not  to  be 
proved  until  after  the  death  of  the  testator, 
it  may  fully  appear  that  in  making  it  she 
was  aware  of  the  character  of  the  instru- 
ment and  was  not  imposed  upon. 

Manner  of  Executing  a  Will. — Every 
last  will  and  testament  of  real  or  personal 
property,  or  both,  shall  be  executed  and 
attested  in  the  following  manner: 

1.  It  shall  be  subscribed  by  the  testator 
at  the  end  of  the  will. 

2.  Such  subscription  shall  be  made  by 
the  testator  in  the  presence  of  each  of  the 
attesting  witnesses,  or  shall  be  acknowl- 
edged by  him  to  have  been  so  made  to  each 
of  the  attesting  witnesses. 

3.  The  testator,  at  the  time  of  making 
such  subscription,  or  at  the  time  of  ac- 
knowledging the  same,  shall  declare  the  in- 
strument so  subscribed  to  be  his  last  will 
and  testament. 

4.  There  shall  be  at  least  two  attesting 
witnesses,   each   of  whom   shall   sign  his 
name  as  a  witness,  at  the  end  of  the  will, 
at  the  request  of  the  testator. 

Witnesses  to  a  Will  to  Write  Names  and 
Places  of  Residence. — The  witnesses  to  any 
will  shall  write  opposite  to  their  names 


76       WOMAN  AND  NEW  YOEK  LAW 

their  respective  places  of  residence;  and 
every  person  who  shall  sign  the  testator's 
name  to  any  will  by  his  direction,  shall 
write  his  own  name  as  a  witness  to  the 
will.  Whoever  shall  neglect  to  comply 
with  either  of  these  provisions  shall  for- 
feit fifty  dollars,  to  be  recovered  by  any 
person  interested  in  the  property  devised 
or  bequeathed,  who  will  sue  for  the  same. 
Such  omission  shall  not  affect  the  validity 
of  any  will;  nor  shall  any  person  liable  to 
the  penalty  aforesaid  be  excused  or  in- 
capacitated on  that  account  from  testify- 
ing respecting  the  execution  of  such  will. 

What  Wills  May  be  Proved.— A  will  of 
real  or  personal  property,  executed  as  pre- 
scribed by  the  laws  of  the  State,  or  a  will 
of  personal  property  executed  without  the 
State,  and  within  the  United  States,  the 
Dominion  of  Canada,  or  the  Kingdom  of 
Great  Britain  and  Ireland,  as  prescribed 
by  the  laws  of  the  state  or  country  where 
it  is  or  was  executed,  or  a  will  of  personal 
property  executed  by  a  person  not  a  resi- 
dent of  the  State,  according  to  the  laws  of 
the  testator's  residence,  may  be  admitted 
to  probate  in  this  State. 

Devise  or  Bequest  to  Certain  Corpora- 
tions.— No  person  leaving  a  wife,  or  child, 
or  parent  shall  devise  or  bequeath  to  any 
institution  or  corporation  formed  under 


WILLS  77 

the  Laws  of  1865,  chapter  368;  Laws  of 
1875,  chapter  267;  Laws  of  1875,  chap- 
ter 343,  or  the  Laws  of  1886,  chapter  236, 
more  than  one-fourth  of  his  or  her  estate 
after  payment  of  his  or  her  debts,  and  such 
devise  or  bequest  shall  be  valid  to  the  ex- 
tent of  such  one-fourth,  and  no  such  devise 
or  bequest  shall  be  valid  in  any  will  which 
shall  not  have  been  made  and  executed  at 
least  two  months  before  the  death  of  the 
testator. 

Devise  or  Bequest  to  Certain  Benevolent, 
Charitable  and  Scientific  Corporations. — 
No  person  leaving  a  wife,  or  child,  or 
parent  shall  devise  or  bequeath  to  any  in- 
stitution or  corporation  formed  under  the 
Laws  of  1848,  chapter  319,  more  than  one- 
half  of  his  or  her  estate,  after  the  payment 
of  his  or  her  debts,  and  such  devise  or  be- 
quest shall  be  valid,  to  the  extent  of  such 
one-half,  and  no  such  devise  or  bequest 
shall  be  valid  in  any  will  which  shall  not 
have  been  made  and  executed  at  least  two 
months  before  the  death  of  the  testator. 

Devise  or  Bequest  to  Certain  Bar  Asso- 
ciations, Veterinary  Associations  and  Fire 
Corporations. — No  person  leaving  a  wife, 
child,  or  parent  shall  devise  or  bequeath 
to  any  association  or  corporation  formed 
under  the  Laws  of  1873,  chapter  397;  Laws 
of  1887,  chapter  315,  or  Laws  of  1890, 


78       WOMAN  AND  NEW  YOEK  LAW 

chapter  286,  more  than  one-fourth  of  his 
or  her  estate,  after  the  payment  of  all  debts 
existing  against  said  estate,  and  such  de- 
vise or  bequest  shall  be  valid  to  the  extent 
of  such  one-fourth  only. 

Mutual  wills  executed  by  husband  and 
wife  devising  reciprocally  to  each  other  are 
valid;  such  an  instrument  operates  as  a 
separate  will  of  whichever  dies  first. 

Child  Born  After  Making  of  Will.— 
Whenever  a  testator  shall  have  a  child 
born  after  the  making  of  a  last  will,  either 
in  the  lifetime  or  after  the  death  of  such 
testator,  and  shall  die  leaving  such  child, 
so  after-born,  unprovided  for  by  any  settle- 
ment, and  neither  provided  for,  nor  in  any 
way  mentioned  in  such  will,  every  such 
child  shall  succeed  to  the  same  portion  of 
the  parent's  real  and  personal  estate  as 
would  have  descended  or  been  distributed 
to  such  child  if  such  parent  had  died  in- 
testate, and  shall  be  entitled  to  recover  the 
same  portion  from  the  devisees  and  lega- 
tees, in  proportion  to  and  out  of  the  parts 
devised  and  bequeathed  to  them  by  such 
will. 

Revocation  and  Cancellation  of  Written 
Wills. — No  will  in  writing,  except  in  the 
cases  mentioned  hereafter,  nor  any  part 
thereof,  shall  be  revoked,  or  altered,  other- 
wise than  by  some  other  will  in  writing,  or 


WILLS  79 

some  other  writing  of  the  testator,  de- 
claring such  revocation  or  alteration,  and 
executed  with  the  same  formalities  with 
which  the  will  itself  was  required  by  law 
to  be  executed;  or  unless  such  will  be 
burnt,  torn,  canceled,  obliterated  or  de- 
stroyed, with  the  intent  and  for  the  pur- 
pose of  revoking  the  same,  by  the  testator 
himself,  or  by  another  person  in  his  pres- 
ence, by  his  direction  and  consent;  and 
when  so  done  by  another  person,  the  direc- 
tion and  consent  of  the  testator;  and  the 
fact  of  such  injury  or  destruction  shall  be 
proved  by  at  least  two  witnesses. 

Revocation  by  Marriage  and  Birth  of 
Issue. — If  after  the  making  of  any  will, 
disposing  of  the  whole  estate  of  the  testa- 
tor, such  testator  shall  marry,  and  have 
issue  of  such  marriage,  born  either  in  his 
lifetime  or  after  his  death,  and  the  wife  or 
the  issue  of  such  marriage  shall  be  living 
at  the  death  of  the  testator,  such  will  shall 
be  deemed  revoked  unless  provision  shall 
have  been  made  for  such  issue  by  some 
settlement,  or  unless  such  issue  shall  be 
provided  for  in  the  will,  or  in  such  way 
mentioned  therein,  as  to  show  an  intention 
not  to  make  such  provision;  and  no  other 
evidence  to  rebut  the  presumption  of  such 
revocation  shall  be  received. 


80       WOMAN  AND  NEW  YOEK  LAW 

Will  of  Unmarried  Woman. — A  will  ex- 
ecuted by  an  unmarried  woman  shall  be 
deemed  revoked  by  her  subsequent  mar- 
riage. 

A  married  woman  who,  although  sep- 
arated from  her  husband  for  many  years, 
has  not  been  divorced  from  him,  has  no 
domicile  separate  from  his,  and  her  will, 
although  it  states  that  .she  resides  in  this 
State,  must  be  construed  according  to  the 
law  of  the  State  of  his  residence,  where 
the  property  disposed  of  is  situated  in  such 
other  State. 

Who  are  Entitled  to  Letters  of  Adminis- 
tration.— Administration  in  case  of  intest- 
acy must  be  granted  to  the  relatives  of  the 
deceased  entitled  to  succeed  to  his  personal 
property,  who  will  accept  the  same,  in  the 
following  order: 

1.  To  the  surviving  husband  or  wife. 

2.  To  the  children. 

3.  To  the  father. 

4.  To  the  mother. 

5.  To  the  brothers. 

6.  To  the  sisters. 

7.  To  the  grandchildren. 

8.  To  any  other  next  of  kin  entitled  to 
share  in  the  distribution  of  the  estate. 

9.  To  an  executor  or  administrator  of  a 
sole  legatee  named  in  a  will,  whereby  the 


WILLS  81 

whole  estate  is  devised  to  such  deceased 
sole  legatee. 

If  a  person  entitled  is  a  minor,  adminis- 
tration must  be  granted  to  his  guardian, 
if  competent,  in  preference  to  creditors  or 
other  persons.  If  no  relative,  or  guardian 
of  a  minor  relative,  will  accept  the  same, 
the  letters  must  be  granted  to  the  creditors 
of  the  deceased;  the  creditor  first  apply- 
ing, if  otherwise  competent,  to  be  entitled 
to  preference.  If  no  creditor  applies,  the 
letters  must  be  granted  to  any  other  per- 
son or  persons  legally  competent.  Letters 
of  administration  shall  also  be  granted  to 
an  executor  or  administrator  of  a  deceased 
person  named  as  sole  legatee  in  a  will.  The 
public  administrator  in  the  City  of  New 
York  has  preference  after  the  next  of  kin 
and  after  an  executor  or  administrator  of 
a  sole  legatee  named  in  a  will  whereby  the 
whole  estate  is  devised  to  such  deceased 
sole  legatee  over  creditors  and  all  other 
persons.  In  other  counties,  the  county 
treasurer  shall  have  preference  next  after 
creditors  over  all  other  persons.  If  several 
persons  of  the  same  degree  of  kindred  to 
the  intestate  are  entitled  to  administration, 
they  must  be  preferred  in  the  following 
order:  First,  men  to  women;  second,  rela- 
tives of  the  whole  blood  to  those  of  the 
half  blood;  third,  unmarried  women  to 


83       WOMAN  AND  NEW  YOKK  LAW 

married.  If  there  are  several  persons 
equally  entitled  to  administration,  the  sur- 
rogate may  grant  letters  to  one  or  more  of 
such  persons,  and  administration  may  be 
granted  to  one  or  more  competent  persons, 
although  not  entitled  to  the  same,  with  the 
consent  of  the  person  entitled  to  be  joined 
with  such  person  or  persons;  which  con- 
sent must  be  in  writing,  and  filed  in  the 
office  of  the  surrogate, 


THE  DESCENT  AND  DISTRIBUTION 
OF  PEOPEETY 

The  General  Rule  of  Descent. — The  real 
property  of  a  person  who  dies  without  de- 
vising the  same  shall  descend: 

1.  To  his  lineal  descendants; 

2.  To  his  father; 

3.  To  his  mother;  and 

4.  To  his  collateral  relatives. 

When  a  Mother  Inherits. — If  the  in- 
testate die  without  descendants  and  leave 
no  father,  or  leave  a  father  not  entitled  to 
take  the  inheritance,  and  leave  a  mother 
and  a  brother  or  sister,  or  the  descendant 
of  a  brother  or  sister,  the  inheritance  shall 
descend  to  the  mother  for  life,  and  the  re- 
version to  such  brothers  and  sisters  of  the 
intestate  as  may  be  living,  and  the  descend- 
ants of  such  as  may  be  dead  according  to 
the  same  law  of  inheritance  hereinafter 
provided.  If  the  intestate  in  such  case 
leave  no  brother  or  sister  or  descendant 
thereof,  the  inheritance  shall  descend  to 
the  mother  in  fee. 

Brothers  and  Sisters  of  Father  and 
Mother  and  Their  Descendants  and  Grand- 
parents.— If  there  be  no  heir  entitled  to 

83 


84      WOMAN  AND  NEW  YORK  LAW 

take,  under  either  of  the  preceding  sec- 
tions, the  inheritance,  if  it  shall  have  come 
to  the  intestate  on  the  part  of  the  father, 
shall  descend: 

1.  To  the  brothers  and  sisters   of  the 
father  of  the  intestate  in  equal  shares,  if 
all  be  living. 

2.  If  any  be  living,  and  any  shall  have 
died,  leaving  issue,  to  such  brothers  and 
sisters  as  shall  be  living  and  to  the  de- 
scendants of  such  as  shall  have  died. 

3.  If  all  such  brothers  and  sisters  shall 
have  died,  to  their  descendants. 

4.  If  there  be  no  such  brothers  or  sisters 
of  such  father,  nor  any  descendants  of  such 
brothers  or  sisters,  to  the  brothers  and 
sisters  of  the  mother  of  the  intestate,  and 
to  the  descendants  of  such  as  shall  have 
died,  or  if  all  have  died,  to  their  descend- 
ants.    But  if  the  inheritance  shall  have 
come  to  the  intestate  on  the  part  of  his 
mother,  it  shall  descend  to  her  brothers 
and  sisters  and  their  descendants;  and  if 
there  be  none,  to  the  brothers  and  sisters 
of  the  father  and  their  descendants,  in  the 
manner  aforesaid.    If  the  inheritance  has 
not  come  to  the  intestate  on  the  part  of 
either  father  or  mother,  it  shall  descend  to 
the  brothers  and  sisters  both  of  the  father 
and  mother  of  the  intestate,  and  their  de- 
scendants in  the  same  manner.     In   all 


DISTEIBUTION  OF  PEOPEETY       85 

cases  mentioned  in  this  section  the  inheri- 
tance shall  descend  to  the  brothers  and 
sisters  of  the  intestate's  father  or  mother, 
as  the  case  may  be,  or  to  their  descendants 
in  like  manner,  as  if  they  had  been  the 
brothers  and  sisters  of  the  intestate. 

5.  If  there  be  no  such  brothers  or  sisters 
or  such  father  or  mother,  nor  any  descend- 
ants of  such  brothers  or  sisters,  the  inheri- 
tance, if  it  shall  have  come  to  the  intestate 
on  the  part  of  his  father,  shall  descend  to 
his  father's  parents,  then  living,  in  equal 
parts,  and  if  they  be  dead,  then  to  his 
mother's  parents,  then  living,  in  equal 
parts;  but  if  the  inheritance  shall  have 
come  to  the  intestate  on  the  part  of  his 
mother,  it  shall  descend  to  his  mother's 
parents,  then  living,  in  equal  parts,  and  if 
they  be  dead,  to  his  father's  parents,  then 
living,  in  equal  parts.  If  the  inheritance 
has  not  come  to  the  intestate  on  the  part 
of  either  father  or  mother,  it  shall  descend 
to  his  living  grandparents  in  equal  parts. 

Relatives  of  Husband  or  Wife. — When 
the  inheritance  shall  have  come  to  the  in- 
testate from  a  deceased  husband  or  wife, 
as  the  case  may  be,  and  there  be  no  person 
entitled  to  inherit  under  any  of  the  pre- 
ceding sections,  then  such  real  property  of 
such  intestate  shall  descend  to  the  heirs 
of  such  deceased  husband  or  wife,  as  the 


86       WOMAN  AND  NEW  YOKE  LAW 

case  may  be,  and  the  persons  entitled, 
under  the  provisions  of  this  section,  to  in- 
herit such  real  property,  shall  be  deemed 
to  be  the  heirs  of  such  intestate. 

Distribution  of  Personal  Property  of  De- 
cedent.— If  the  deceased  died  intestate,  the 
surplus  of  his  personal  property  after  pay- 
ment of  debts;  and  if  he  left  a  will,  such 
surplus,  after  the  payment  of  debts  and 
legacies,  if  not  bequeathed,  must  be  dis- 
tributed to  his  widow,  children,  or  next  of 
kin,  in  manner  following: 

1.  One-third  part  to  the  widow,  and  the 
residue  in  equal  portions  among  the  chil- 
dren, and  such  persons  as  legally  represent 
the  children  if  any  of  them  have  died  be- 
fore the  deceased. 

2.  If  there  be  no  children,  nor  any  legal 
representatives  of  them,  then  one-half  of 
the  whole  surplus  shall  be  allotted  to  the 
widow,  and  the  other  half  distributed  to 
the  next  of  kin  of  the  deceased,  entitled 
under  the  provisions  of  this  section. 

3.  If  the  deceased  leaves  a  widow,  and 
no  descendant,  parent,  brother  or  sister, 
nephew  or  niece,  the  widow  shall  be  en- 
titled to  the  whole  surplus;  but  if  there  be 
a  brother  or  sister,  nephew  or  niece,  and 
no  descendant  or  parent,  the  widow  shall 
be  entitled  to  one-half  of  the  surplus  as 
above  provided,  and  to  the  whole  of  the 


DISTRIBUTION  OF  PROPERTY       87 

residue  if  it  does  not  exceed  two  thousand 
dollars;  if  the  residue  exceeds  that  sum, 
she  shall  receive  in  addition  to  the  one- 
half,  two  thousand  dollars;  and  the  re- 
mainder shall  be  distributed  to  the  brothers 
and  sisters  and  their  representatives. 

4.  If  there  be  no  widow,  the  whole  sur- 
plus shall  be  distributed  equally  to  and 
among  the  children,  and  such  as  legally 
represent  them. 

5.  If  there  be  no  widow,  and  no  children, 
and  no  representatives  of  a  child,  the  whole 
surplus  shall  be  distributed  to  the  next  of 
kin,  in  equal  degree  to  the  deceased,  and 
their  legal  representatives;  and  if  all  the 
brothers  and  sisters  of  the  intestate  be  liv- 
ing, the  whole  surplus  shall  be  distributed 
to  them;  if  any  of  them  be  living  and  any 
be  dead,  to  the  brothers  and  sisters  living, 
and  the  descendants  in  whatever  degree  of 
those  dead;  so  that  to  each  living  brother 
or  sister  shall  be  distributed  such  share  as 
would  have  been  distributed  to  him  or  her 
if  all  the  brothers  and  sisters  of  the  in- 
testate who  shall  have  died  leaving  issue 
had  been  living,  and  so  that  there  shall  be 
distributed  to  such  descendants  in  what- 
ever degree,  collectively,  the  share  which 
their  parent  would  have  received  if  living; 
and  the  same  rule  shall  prevail  as  to  all 
direct  lineal  descendants  of  every  brother 


88       WOMAN  AND  NEW  YORK  LAW 

and  sister  of  the  intestate  whenever  such 
descendants  are  of  unequal  degrees. 

6.  If  the  deceased  leave  no  children  and 
no  representatives  of  them,  and  no  father, 
and  leave  a  widow  and  a  mother,  the  half 
not  distributed  to  the  widow  shall  be  dis- 
tributed in  equal  shares  to  his  mother  and 
brothers  and  sisters,  or  the  representatives 
of  such  brothers  and  sisters;  and  if  there 
be  no  widow,  the  whole  surplus  shall  be 
distributed  in  like  manner  to  the  mother, 
and  to  the  brothers  and  sisters,  or  the  rep- 
resentatives of  such  brothers  and  sisters. 

7.  If  the  deceased  leave  a  father  and  no 
child  or  descendant,  the  father  shall  take 
one-half  if  there   be   a  widow,   and   the 
whole,  if  there  be  no  widow. 

8.  If  the  deceased  leave  a  mother,  and 
no  child,  descendant,  father,  brother,  sister, 
or  representative  of  a  brother  or  sister,  the 
mother,  if  there  be  a  widow,  shall  take  one- 
half;  and  the  whole,  if  there  be  no  widow. 

9.  If  the  deceased  was  illegitimate  and 
leave  a  mother,  and  no  child,  or  descend- 
ant, or  widow,  such  mother  shall  take  the 
whole  and  shall  be  entitled  to  letters  of 
administration  in  exclusion   of  all  other 
persons.    If  the  mother  of  such  deceased 
be  dead,  the  relatives  of  the  deceased  on 
the  part  of  the  mother  shall  take  in  the 
same  manner  as  if  the  deceased  had  been 


legitimate,  and  be  entitled  to  letters  of  ad- 
ministration in  the  same  order. 

10.  Where  the  descendants,  or  next  of 
kin  to  the  deceased,  entitled  to  share  in  his 
estate,  are  all  in  equal  degree  to  the  de- 
ceased, their  shares  shall  be  equal. 

11.  When  such  descendants  or  next  of 
kin  are  of  unequal  degrees  of  kindred,  the 
surplus  shall  be  apportioned  among  those 
entitled  thereto,  according  to  their  respect- 
ive stocks;  so  that  those  who  take  in  their 
own  right  shall  receive  equal  shares,  and 
those  who  take  by  representation  shall  re- 
ceive the  share  to  which  the  parent  whom 
they  represent,  if  living,  would  have  been 
entitled. 

12.  No  representation  shall  be  admitted 
among  collaterals  after  brothers  and  sis- 
ters descendants.     This  subdivision  shall 
not  apply  to  the  estate  of  a  decedent  who 
shall  have  died  prior  to  May  eighteenth, 
nineteen  hundred  and  five. 

13.  Relatives  of  the  half-blood  shall  take 
equally  with  those  of  the  whole  blood  in 
the  same  degree;  and  the  representatives 
of  such  relatives  shall  take  in  the  same 
manner  as  the  representatives  of  the  whole 
blood. 

14.  Descendants  and  next  of  kin  of  the 
deceased,  begotten  before  his  death,  but 
born  thereafter,  shall  take  in  the  same 


90       WOMAN  AND  NEW  YORK  LAW 

manner  as  if  they  had  been  born  in  the  life- 
time of  the  deceased,  and  had  survived 
him. 

15.  If  a  woman  die,  leaving  illegitimate 
children,  and  no  lawful  issue,  such  children 
inherit  her  personal  property  as  if  legiti- 
mate. 

16.  If  there  be  no  husband  or  wife  sur- 
viving and  no  children,  and  no  representa- 
tives of  a  child,  and  no  next  of  kin,  then 
the   whole    surplus    shall    be    distributed 
equally  to  and  among  the  next  of  kin  of 
the  husband  or  wife  of  the  deceased,  as  the 
case  may  be,  and  such  next  of  kin  shall  be 
deemed  next  of  kin  of  the  deceased  for  all 
the  purposes  specified  in  this  article  or  in 
chapter  eighteenth  of  the  code  of  civil  pro- 
cedure; but  such  surplus  shall  not,  and 
shall  not  be  construed  to,  embrace  any  per- 
sonal property  except  such  as  was  received 
by  the  deceased  from  such  husband  or 
wife,  as  the  case  may  be,  by  will  or  by 
virtue  of  the  laws  relating  to  the  distribu- 
tion of  the  personal  property  of  the  de- 
ceased person. 

A  woman  who  has  procured  from  the 
courts  of  this  State  a  decree  of  absolute 
divorce  from  her  husband  is  not,  at  the 
time  of  his  death,  his  widow  within  the 
meaning  of  that  term  as  used  in  the  statute 


DISTEIBUTIOjST  OF  PKOPEKTY        91 

of  distribution,  and  is  not  entitled  to  a  dis- 
tributive share  of  his  personal  estate. 

The  Estates  of  Married  Women. — The 
provisions  of  this  article  respecting  the 
distribution  of  property  of  deceased  per- 
sons apply  to  the  personal  property  of 
married  women  dying,  leaving  descendants 
of  them  surviving.  The  husband  of  any 
such  deceased  married  woman  shall  be  en- 
titled to  the  same  distributive  share  in  the 
personal  property  of  his  wife  to  which  a 
widow  is  entitled  in  the  personal  property 
of  her  husband  by  the  provisions  of  this 
article  and  no  more. 

Where  a  wife  dies  intestate  and  without 
descendants,  her  husband  takes  solely  by 
virtue  of  his  marital  right  all  of  her  per- 
sonal property,  and  to  that  extent  is  liable 
for  her  debts,  and  failing  to  administer,  is 
presumed  to  have  assets  sufficient  to  pay 
them. 

Action  Against  Husband  for  Debts  of 
Deceased  Wife. — If  a  surviving  husband 
does  not  take  out  letters  of  administration 
on  the  estate  of  his  deceased  wife,  he  is 
presumed  to  have  assets  in  his  hands  suffi- 
cient to  satisfy  her  debts,  and  is  liable 
therefor.  A  husband  is  liable  as  adminis- 
trator for  the  debts  of  his  wife  only  to  the 
extent  of  the  assets  received  by  him.  If 


he  dies  leaving  any  assets  of  his  wife  un- 
administered,  except  as  otherwise  provided 
by  law,  they  pass  to  his  executors  or  ad- 
ministrators as  part  of  his  personal  prop- 
erty, but  are  liable  for  her  debts  in  pref- 
erence to  the  creditors  of  the  husband. 

Exemption  for  Widow  and  Children. — If 
a  man  having  a  family  die,  leaving  a 
widow  or  minor  child  or  children,  the  fol- 
lowing articles  shall  not  be  deemed  assets, 
but  must  be  included  and  stated  in  the  in- 
ventory of  the  estate  without  being  ap- 
praised : 

1.  All  spinning  wheels,  weaving  looms, 
one  knitting  machine,  one  sewing  machine, 
and  stoves  put  up  or  kept  for  use  by  his 
family. 

2.  The  family  Bible,  family  pictures  and 
school-books,  used  by  or  in  such  family, 
and  books  not  exceeding  in  value  fifty  dol- 
lars, which  are  kept  and  used  as  part  of 
the  family  library. 

3.  Sheep  to  the  number  of  ten,  with  their 
fleeces,  and  yarn  and  cloth  manufactured 
from  the  same;  one  cow,  two  swine,  and 
the  pork  of  such  swine,  and  necessary  food 
for  such  swine,  sheep  or  cow  for  sixty 
days,  and  all  necessary  provisions  and  fuel 
for  such  widow,  child  or  children  for  sixty 
days  after  the  death  of  such  deceased  per- 
son. 


DISTRIBUTION  OF  PEOPEETY       93 

4.  All  necessary  wearing  apparel,  beds, 
bedsteads  and  bedding,  necessary  cooking 
utensils,  the  clothing  of  the  family,  the 
clothes  of  the  widow  and  her  ornaments 
proper    for    her    station;    one    table,    six 
chairs,  twelve   knives   and  forks,   twelve 
plates,  twelve  tea  cups  and  saucers,  one 
sugar  dish,  one  milk  pot,  one  tea  pot  and 
twelve  spoons,  and  other  household  furni- 
ture not  exceeding  one  hundred  and  fifty 
dollars  in  value. 

5.  Other  necessary  household  furniture, 
provisions  or  other  personal  property,  in 
the  discretion   of  the   appraisers,  to   the 
value  of  not  exceeding  one  hundred  and 
fifty  dollars.    Such  articles  and  property 
shall    remain    in    the    possession    of    the 
widow,  if  there  be  one,  during  the  time  she 
lives  and  provides  for  such  minor  child  or 
children.    If  she  ceases  so  to  do,  she  shall 
be  allowed  to  retain  as  her  own,  her  wear- 
ing apparel,  her  ornaments  and  one  bed, 
bedstead  and  bedding  for  the  same,  and 
the  property  specified  in  subdivision  five; 
and  the  other  articles  so  exempted  shall 
then  belong  to  such  minor  child  or  chil- 
dren.   If  she  lives  with  and  provides  for 
such  minor  child  or  children  until  it  or 
they  become  of  full  age,  all  the  articles  and 
property  in  this  section  mentioned  shall 
belong  to  the  widow.    If  there  be  a  widow 


94       WOMAN  AND  NEW  YOKK  LAW 

and  no  minor  child,  all  the  articles  and 
property  in  this  section  mentioned  shall 
belong  to  the  widow.  If  a  married  woman 
die,  leaving  surviving  her  a  husband,  or  a 
minor  child  or  children,  the  same  articles 
and  personal  property  shall  be  set  apart 
by  the  appraisers  with  the  same  effect  for 
the  benefit  of  such  husband  or  minor  child 
or  children. 


PART  III 

THE  PUBLIC  RELATIONS  OF 
WOMEN 


Citizen  Women. — Women  are  as  truly 
citizens  of  the  State  of  New  York  and  of 
the  United  States  as  are  men.  The  right 
to  exercise  the  elective  franchise  is  not  an 
essential  element  of  citizenship. 

An  alien  is  a  person  who  is  not  a  citizen 
of  the  State  in  which  he  resides.  An  alien 
woman  becomes  a  citizen  by  marrying  a 
citizen.  If  a  man  dies  after  declaring  his 
intention  of  becoming  a  citizen  and  before 
he  is  admitted  to  citizenship  his  widow  is 
entitled  to  dower  in  his  property, 


07 


WOMEN  AND  THE  ELECTIVE  FKAN- 
CHISE 

Under  the  Village  Law. — At  an  election 
for  the  incorporation  of  a  village  by  the 
residents  of  a  town  a  woman  who  possesses 
the  qualifications  to  vote  at  a  town  meet- 
ing, except  the  qualification  of  sex,  and 
who  has  been  a  resident  of  such  territory 
for  at  least  thirty  days  next  preceding  such 
election,  and  who  is  the  owner  of  property 
within  such  territory,  which  was  assessed 
upon  the  last  assessment  roll  of  the  town, 
may  vote  at  such  election. 

At  a  village  election  other  than  that  for 
incorporation  a  woman  who  possesses  the 
qualifications  to  vote  for  village  officers, 
except  the  qualification  of  sex,  who  is  the 
owner  of  property  in  the  village  assessed 
upon  the  last  preceding  assessment-roll 
thereof,  is  entitled  to  vote  upon  a  proposi- 
tion to  raise  money  by  tax  or  assessment, 
or  for  the  dissolution  of  the  village. 

A  resident  woman,  who  is  a  citizen  of 
the  United  States,  and  of  the  age  of  twenty- 
one  years,  is  eligible  for  the  office  of  vil- 
lage clerk  or  deputy  clerk. 

Woman  May  Institute  Proceeding. — 
Where  a  right  is  granted  by  this  chapter 

98 


ELECTIVE  FKANCHISE  99 

to  institute  a  proceeding,  make  an  applica- 
tion, present  a  petition,  or  take  an  appeal, 
such  right  may  be  exercised  by  an  adult 
resident  woman  who  owns  property  as- 
sessed upon  the  last  preceding  assessment- 
roll  of  the  village. 

Under  the  Town  Law. — An  elector  of  a 
town  shall  not  be  entitled  to  vote  by  ballot 
upon  any  proposition  for  the  raising  or  ap- 
propriation of  money,  or  the  incurring  of 
any  town  liability,  unless  he  or  his  wife  is 
the  owner  of  property  in  the  town,  assessed 
upon  the  last  preceding  assessment-roll 
thereof. 

When  Women  are  Qualified  to  Vote. — 
A  woman  who  possesses  the  qualifications 
to  vote  for  town  officers,  except  the  quali- 
fication of  sex,  and  who  is  the  owner  of 
property  in  the  town  assessed  upon  the 
last  preceding  assessment-roll  thereof,  is 
entitled  to  vote  upon  a  proposition  to  raise 
money  by  tax  or  assessment. 

Under  the  Education  Law. — The  educa- 
tion law  of  1909  provides  as  follows:  A 
person  shall  be  entitled  to  vote  at  any 
school  meeting  for  the  election  of  school 
district  officers,  and  upon  all  other  matters 
which  may  be  brought  before  such  meeting 
who  is: 

1.  A  citizen  of  the  United  States. 

2.  Twenty-one  years  of  age. 


100  WOMAN  AND  NEW  YOKE  LAW 

3.  A  resident  within  the  district  for  a 
period  of  thirty  days  next  preceding  the 
meeting  at  which  he  offers  to  vote;  and 
who  in  addition  thereto  possesses  one  of 
the  following  four  qualifications: 

a.  Owns  or  hires,  or  is  in  the  possession 
under  a  contract  of  purchase  of  real  prop- 
erty in  such  district  liable  to  taxation  for 
school  purposes,  or 

b.  Is  the  parent  of  a  child  of  school  age, 
provided  such  child  shall  have  attended 
the  district  school  in  the  district  in  which 
the  meeting  is  held  for  a  period  of  at  least 
eight   weeks   during   the   year  preceding 
such  school  meeting,  or 

c.  Not   being   the   parent,    has   perma- 
nently residing  with  him  a  child  of  school 
age  who  shall  have  attended  the  district 
school  for  a  period  of  at  least  eight  weeks 
during  the  year  preceding  such  meeting,  or 

d.  Owns  any  personal  property,  assessed 
upon  the  last  preceding  assessment-roll  of 
the  town,  exceeding  fifty  dollars  in  value, 
exclusive  of  such  as  is  exempt  from  execu- 
tion. 

No  person  shall  be  deemed  to  be  ineli- 
gible to  vote  at  any  such  meeting,  by  rea- 
son of  sex,  who  has  the  other  qualifications 
required  by  this  section. 

Election  and  Qualifications  of  School 
Commissioners, — A  school  commissioner 


ELECTIVE  FKANCHISE  101 

for  each  school  commissioner  district  shall 
be  elected  by  the  electors  thereof,  at  the 
general  election  held  each  third  year  dating 
from  the  one  held  in  the  year  eighteen  hun- 
dred and  ninety-six.  Any  person  of  full 
age,  a  citizen  of  the  United  States,  a  resi- 
dent of  the  State,  and  of  the  county  in 
which  a  school  commissioner  district  is  sit- 
uated, shall  be  eligible  to  the  office  of 
school  commissioner.  No  person  shall  be 
deemed  ineligible  to  such  office  by  reason 
of  sex  who  has  the  other  qualifications  as 
herein  provided. 

Husband  or  Wife  as  Witness. — The  hus- 
band or  wife  of  a  person  indicted  or  ac- 
cused of  a  crime  is  in  all  cases  a  competent 
witness,  on  the  examination  or  trial  of  such 
person;  but  neither  husband  or  wife  can 
be  compelled  to  disclose  a  confidential 
communication,  made  by  one  to  the  other 
during  their  marriage. 

This  section  does  not  leave  the  matter 
entirely  to  the  discretion  of  the  witness, 
but  the  other  party  interested  may  object 
to  any  such  communication. 

Women  as  Executors. — Women  may  be 
named  as  executors  in  wills  and  may  serve 
provided  they  have  none  of  the  following 
disqualifications : 

1.  Incapable  in  law  of  making  a  con- 
tract. 


102     WOMAN  AND  NEW  YOEK  LAW 

2.  Under  the  age  of  twenty-one  years. 

3.  Being  an  alien,  not  an  inhabitant  of 
this  State. 

4.  Having  been  convicted  of  an  infamous 
crime. 

5.  Is  found  by  the  surrogate  to  be  in- 
competent to  execute  the  duties  of  such 
trust  by  reason  of  drunkenness,  dishon- 
esty, improvidence  or  want  of  understand- 
ing.   A  surrogate  in  his  discretion  may  re- 
fuse to  grant  letters  testamentary  or  of  ad- 
ministration to  a  person  unable  to  read  and 
write  the  English  language. 

Women  as  Trustees. — Women  may  be 
appointed  trustees  either  by  will  or  by  deed 
to  carry  out  the  provisions  of  any  lawful 
trust. 

A  trust  may  be  broadly  defined  as  an 
equitable  obligation,  either  express  or  im- 
plied, resting  upon  a  person  by  reason  of 
a  confidence  imposed  in  him,  to  apply  or 
deal  with  property  for  the  benefit  of  some 
other  person  or  persons,  or  for  the  benefit 
of  himself  and  others,  according  to  such 
confidence. 

In  a  case  decided  by  the  New  York  court 
of  appeals  that  a  married  woman  was 
capable  of  being  a  trustee  under  the  New 
York  statute,  and,  having  become  a  trustee 
in  this  State  where  the  trust  fund  re- 
mained, her  title  thereto  was  not  lost,  but 


ELECTIVE  FKANCHISE  103 

could  be  enforced  in  New  York,  notwith- 
standing she  had  removed  to  New  Jersey, 
where  a  married  woman  cannot  be  ap- 
pointed a  trustee. 

Women  as  Incorporators  and  Directors. 
— There  is  nothing  in  law  to  prevent 
women  acting  as  incorporators  of  corpora- 
tions organized  for  business  or  other  pur- 
poses. Women  may  also  serve  as  the 
directors  and  officers  of  such  corporations. 

Women  in  the  Licensed  Professions. — It 
is  now  possible  as  far  as  the  law  is  con- 
cerned for  women  to  enter  all  the  learned 
professions  in  which  a  license  to  practice 
is  required  by  the  State,  such  as  the  pro- 
fessions of  law,  medicine,  osteopathy,  den- 
tistry, etc. 

Women  may  also  receive  a  license  to  op- 
erate an  employment  agency,  and  may  be 
licensed  to  operate  as  a  private  detective. 


REGISTRATION  OF  NURSES 

Who  May  Practice  as  Registered  Nurses. 
— Any  resident  of  the  State  of  New  York, 
being  over  the  age  of  twenty-one  years  and 
of  good  moral  character,  holding  a  diploma 
from  a  training  school  for  nurses  connected 
with  a  hospital  or  sanitarium  giving  a 
course  of  at  least  two  years,  and  registered 
by  the  regents  of  the  university  of  the 
State  of  New  York  as  maintaining  in  this 
and  other  respects  proper  standards,  all  of 
which  shall  be  determined  by  the  said  re- 
gents, and  who  shall  have  received  from 
the  said  regents  a  certificate  of  his  or  her 
qualifications  to  practice  as  a  registered 
nurse,  shall  be  styled  and  known  as  a  regis- 
tered nurse,  and  no  other  person  shall 
assume  such  title,  or  use  the  abbreviation 
R.  N.  or  any  other  words,  letters  or  figures 
to  indicate  that  the  person  using  the  same 
is  such  a  registered  nurse.  Before  begin- 
ning to  practice  nursing  every  such  regis- 
tered nurse  shall  cause  such  certificate  to 
be  recorded  in  the  county  clerk's  office  of 
the  county  of  his  or  her  residence  with  an 
affidavit  of  his  or  her  identity  as  the  per- 
son to  whom  the  same  was  so  issued  and 


104 


of  his  or  her  place  of  residence  within  such 
county.  In  every  thirty-sixth  month  from 
the  month  of  January,  nineteen  hundred 
and  six,  every  registered  nurse  shall  again 
cause  his  or  her  certificate  to  be  recorded 
in  the  said  county  clerk's  office,  with  an 
affidavit  of  his  or  her  identity  as  the  per- 
son to  whom  the  same  was  issued,  and  of 
his  or  her  place  of  residence  at  the  time  of 
such  re-registration.  Nothing  contained  in 
this  article  shall  be  considered  as  confer- 
ring any  authority  to  practice  medicine  or 
to  undertake  the  treatment  or  cure  of  dis- 
ease in  violation  of  article  eight  of  this 
chapter. 

Board  of  Examiners;  Examination;  Fees. 
— The  board  of  examiners  of  nurses  ap- 
pointed pursuant  to  laws  of  nineteen  hun- 
dred and  three,  chapter  two  hundr» '".  and 
ninety-three,  is  continued.  The  ^  #  York 
state  nurses  *  association  at  e'  -h  annual 
meeting  shall  nominate  for  examiners  two 
of  their  members  who  have  had  not  less 
than  five  years'  experience  in  their  pro- 
fession. Upon  the  expiration  of  the  term 
of  office  of  any  examiner  now  in  office  the 
regents  of  the  university  of  the  State  of 
New  York  shall  from  the  candidates  so 
nominated  fill  the  vacancy  for  a  term  of 
five  years  and  until  his  or  her  successor 
is  chosen.  An  unexpired  term  of  an  exam- 


106  WOMAN  AND  NEW  YOEK  LAW 

iner  caused  by  death,  resignation  or  other- 
wise, shall  be  filled  by  the  regents  in  the 
same  manner  as  an  original  appointment 
is  made.  The  said  regents,  with  the  advice 
of  the  board  of  examiners  above  provided 
for,  shall  make  rules  for  the  examination 
of  nurses  applying  for  certification  under 
this  article,  and  shall  charge  for  examina- 
tion and  for  certification  a  fee  of  five  dol- 
lars to  meet  the  actual  expenses,  and  shall 
report  annually  their  receipts  and  expendi- 
tures under  the  provisions  of  this  article, 
to  the  state  comptroller,  and  pay  the  bal- 
ance of  receipts  over  expenditures  to  the 
state  treasurer.  The  said  regents  may  re- 
voke any  such  certificate  for  sufficient 
cause  after  written  notice  to  the  holder 
thereof  and  hearing  thereon.  No  person 
shall  thereafter  practice  as  a  registered 
nurse  under  any  such  revoked  certificate. 
Waiver  of  Examination. — The  regents 
of  the  university  of  the  State  of  New  York 
may  upon  the  recommendation  of  said 
board  of  examiners,  waive  the  examination 
of  any  persons  possessing  the  qualifications 
mentioned  in  section  two  hundred  and 
fifty,  who  shall  have  been  graduated  be- 
fore, or  who  were  in  training  on  the 
twenty-fourth  day  of  April,  nineteen  hun- 
dred and  three,  and  shall  thereafter  be 
graduated. 


REGISTRATION  OF  NURSES        107 

Violations  of  This  Article. — Any  viola- 
tion of  this  article  shall  be  a  misdemeanor. 
When  any  prosecution  under  this  article  is 
made  on  the  complaint  of  the  New  York 
state  nurses'  association,  the  certificate  of 
incorporation  of  which  was  filed  and 
recorded  in  the  office  of  the  secretary  of 
state  on  the  second  day  of  April,  nineteen 
hundred  and  two,  the  fines  collected  shall 
be  paid  to  said  association  and  any  excess 
in  the  amount  of  fines  so  paid  over  the  ex- 
penses incurred  by  said  association  in  en- 
forcing the  provisions  of  this  article  shall 
be  paid  at  the  end  of  each  year  to  the  treas- 
urer of  the  State  of  New  York. 


PART  IV 

THE 

PROTECTION  AND  CORRECTION 
OF  WOMEN 


PEOTECTION  FROM  ILLITERACY 

REALIZING  that  public  order  and 
prosperity  depend  largely  upon  the 
trained  intelligence  of  the  mass  of  the 
people,  the  State  of  New  York  has  enacted 
an  education  law  requiring  a  certain  at- 
tendance upon  instruction,  and  this  law  ap- 
plies to  girls  as  well  as  to  boys. 

Instruction  Required. — The  instruction 
required  by  this  law  shall  be: 

1.  At  a  public  school  in  which  at  least 
the  six  common  school  branches  of  read- 
ing, spelling,  writing,  arithmetic,  English 
language   and   geography   are   taught  in 
English. 

2.  Elsewhere  than  a  public  school  upon 
instruction  in  the  same  subjects  in  Eng- 
lish by  a  competent  teacher. 

Required  Attendance  Upon  Instruction. 
— 1.  Every  child  within  the  compulsory 
school  ages,  in  proper  physical  and  mental 
condition  to  attend  school,  residing  in  a 
city  or  school  district  having  a  population 
of  five  thousand  or  more  and  employing  a 
superintendent  of  schools,  shall  regularly 
attend  upon  instruction  as  follows: 

(a)  Each  child  between  seven  and  four- 
teen years  of  age  shall  attend  the  entire 
time  during  which  the  school  attended  is 
in  session,  which  period  shall  not  be  less 

111 


than  one  hundred  and  sixty  days  of  actual 
school. 

(b)  Each  child  between  fourteen  and 
sixteen  years  of  age  not  regularly  and  law- 
fully engaged  in  any  useful  employment 
or  service,  and  to  whom  an  employment 
certificate  has  not  been  duly  issued  under 
the  provisions  of  the  labor  law,  shall  so 
attend  the  entire  time  during  which  the 
school  attended  is  in  session. 

2.  Every  such  child  residing  elsewhere 
than  in  a  city  or  school  district  having  a 
population  of  five  thousand  or  more  and 
employing  a  superintendent  of  schools, 
shall  attend  upon  instruction  as  many  days 
annually  between  the  first  day  of  October 
and  the  following  June  as  the  public  school 
of  the  district  in  which  such  child  resides 
shall  be  in  session  during  such  period  as 
follows : 

(a)  Each  child  between  eight  and  four- 
teen years  of  age. 

(b)  Each   child  between   fourteen   and 
sixteen  years  of  age  not  regularly  and  law- 
fully engaged  in  any  useful  employment 
or  service. 

The  Unlawful  Employment  of  Children. 
— It  shall  be  unlawful  for  any  person,  firm 
or  corporation : 

1.  To  employ  any  child  under  fourteen 
years  of  age,  in  any  business  or  service 


PROTECTION  FROM  ILLITERACY  113 

whatever,  for  any  part  of  the  term  during 
which  the  public  schools  of  the  district  or 
city  in  which  the  child  resides  are  in 
session. 

2.  To  employ,  elsewhere  than  in  a  city 
of  the  first  class  or  a  city  of  the  second 
class,  in  a  factory  or  mercantile  establish- 
ment, business  or  telegraph  office,  restau- 
rant, hotel,  apartment  house  or  in  the  dis- 
tribution or  transmission  of  merchandise 
or  messages,  any  child  between  fourteen 
and  sixteen  years  of  age  who  does  not  at 
the  time  of  such  employment  present  an 
employment  certificate  duly  issued  under 
the  provisions  of  the  labor  law,  or  to  em- 
ploy any  such  child  in  any  other  capacity 
who  does  not  at  the  time  of  such  employ- 
ment present  a  school  record  certificate  as 
provided  by  the  education  law. 

3.  To  employ  any  child  between  fourteen 
and  sixteen  years  of  age  in  a  city  of  the 
first  class  or  in  a  city  of  the  second  class 
who  does  not,  at  the  time  of  such  employ- 
ment, present  an  employment  certificate, 
duly  issued  under  the  provisions  of  the 
labor  law. 

No  Exclusion  on  Account  of  Race  or 
Color. — No  person  shall  be  refused  admis- 
sion into  or  be  excluded  from  any  public 
school  in  the  State  of  New  York  on  account 
of  race  or  color. 


EMPLOYMENT     OF     WOMEN     AND 

CHILDREN  IN  MERCANTILE 

ESTABLISHMENTS 

Application  of  Article. — The  provisions 
of  this  article  shall  apply  to  all  villages 
and  cities  which  at  the  last  preceding  state 
enumeration  had  a  population  of  three 
thousand  or  more. 

Hours  of  Labor  of  Minors. — No  child 
under  the  age  of  sixteen  years  shall  be  em- 
ployed, permitted  or  suffered  to  work  in 
or  in  connection  with  any  mercantile  estab- 
lishment, business  office,  or  telegraph  office, 
restaurant,  hotel,  apartment  house,  bowl- 
ing alley,  or  in  the  distribution  or  trans- 
mission of  merchandise,  articles  or  mes- 
sages, or  in  the  distribution  or  sale  of 
articles  or  as  a  messenger,  usher  or  checker 
in  places  of  amusement,  more  than  fifty- 
four  hours  in  any  one  week,  or  more  than 
nine  hours  in  any  one  day,  or  before  eight 
o'clock  in  the  morning  or  after  seven 
o'clock  in  the  evening  of  any  day.  No 
female  employee  between  sixteen  and 
twenty-one  years  of  age  shall  be  required, 
permitted  or  suffered  to  work  in  or  in  con- 
nection with  any  mercantile  establishment 

114 


EMPLOYMENT:  WOMEN— CHILDREN   115 

more  than  sixty  hours  in  any  one  week;  or 
more  than  ten  hours  in  any  one  day,  un- 
less for  the  purpose  of  making  a  shorter 
work  day  of  some  one  day  of  the  week;  or 
before  seven  o'clock  in  the  morning  or 
after  ten  o  'clock  in  the  evening  of  any  day. 
This  section  does  not  apply  to  the  employ- 
ment of  persons  sixteen  years  of  age  or  up- 
ward between  the  eighteenth  day  of  De- 
cember and  the  following  twenty-fourth 
day  of  December,  both  inclusive.  Not  less 
than  forty-five  minutes  shall  be  allowed  for 
the  noonday  meal  of  the  employees  of  any 
such  establishment.  Whenever  any  em- 
ployee is  employed  or  permitted  to  work 
after  seven  o'clock  in  the  evening,  such 
employee  shall  be  allowed  at  least  twenty 
minutes  to  obtain  lunch  or  supper  between 
five  and  seven  o'clock  in  the  evening. 

Employment  of  Children. — No  child 
under  the  age  of  fourteen  years  shall  be 
employed  or  permitted  to  work  in  or  in 
connection  with  any  mercantile  or  other 
business  or  establishment  specified  in  the 
preceding  section,  except  that  a  child  up- 
ward of  twelve  years  of  age  may  be  em- 
ployed therein  in  villages  and  cities  of  the 
second  or  third  class,  during  the  summer 
vacation  of  the  public  schools  of  the  city 
or  district  where  such  establishment  is  sit- 
uated. No  child  under  the  age  of  sixteen 


116     WOMAN  AND  NEW  YOKK  LAW 

years  shall  be  so  employed  or  permitted  to 
work  unless  an  employment  certificate, 
issued  as  provided  in  this  article,  shall 
have  been  theretofore  filed  in  the  office  of 
the  employer  at  the  place  of  employment 
of  such  child. 

Employment  Certificate;  How  Issued. — 
Such  certificate  shall  be  issued  by  the  com- 
missioner of  health  or  the  executive  officer 
of  the  board  or  department  of  health  of 
the  city,  town  or  village  where  such  child 
resides  or  is  to  be  employed,  or  by  such 
officer  thereof  as  may  be  designated  by 
such  board,  department  or  commissioner 
for  that  purpose,  upon  the  application  of 
the  parent,  guardian  or  custodian  of  the 
child  desiring  such  employment.  Such 
officer  shall  not  issue  such  certificate  until 
he  has  received,  examined,  approved  and 
filed  the  following  papers  duly  executed, 
viz. :  The  school  record  of  such  child  prop- 
erly filled  out  and  signed  as  provided  in 
this  article;  also,  evidence  of  age  showing 
that  the  child  is  fourteen  years  old  or  up- 
wards, which  shall  consist  of  the  evidence 
thereof  provided  in  one  of  the  following 
subdivisions  of  this  section  and  which  shall 
be  required  in  the  order  herein  designated 
as  follows: 

(a)  Birth  Certificate. — A"  duly  attested 
transcript  of  the  birth  certificate  filed  ac- 


EMPLOYMENT:  WOMEN— CHILDKEN   117 

cording  to  law  with  a  registrar  of  vital 
statistics  or  other  officer  charged  with  the 
duty  of  recording  births,  which  certificate 
shall  be  conclusive  evidence  of  the  age  of 
such  child. 

(b)  Certificate  of  Graduation. — A  cer- 
tificate of  graduation  duly  issued  to  such 
child  showing  that  such  child  is  a  graduate 
of  a  public  school  of  the  State  of  New 
York  or  elsewhere,  having  a  course  of  not 
less  than  eight  years,  or  of  a  school  in  the 
State  of  New  York  other  than  a  public 
school,  having  a  substantially  equivalent 
course   of  study  of  not  less  than   eight 
years'  duration,  in  which  a  record  of  the 
attendance  of  such  child  has  been  kept  as 
required  by  article  twenty  of  the  educa- 
tion law,  provided  that  the  record  of  such 
school  shows  such  child  to  be  at  least  four- 
teen  years  of  age. 

(c)  Passport  or  Baptismal  Certificate. — 
A  passport  or  a  duly  attested  transcript  of 
a  certificate  of  baptism  showing  the  date 
of  birth  and  place  of  baptism  of  such  child. 

(d)  Other  Documentary  Evidence. — In 
case  it  shall  appear  to  the  satisfaction  of 
the  officer  to  whom  application  is  made,  as 
herein  provided,  for  an  employment  certifi- 
cate, that  a  child  for  whom  such  certificate 
is  requested  and  who  has  presented  the 
school   record,   is   in   fact   over  fourteen 


118    WOMAN  AND  NEW  YOEK  LAW 

years  of  age,  and  that  satisfactory  docu- 
mentary evidence  of  age  can  be  produced, 
which  does  not  fall  within  any  of  the  pro- 
visions of  the  preceding  subdivisions  of 
this  section,  and  that  none  of  the  papers 
mentioned  in  said  subdivisions  can  be  pro- 
duced, then  and  not  otherwise  he  shall  pre- 
sent to  the  board  of  health  of  which  he  is 
an  officer  or  agent,  for  its  action  thereon, 
a  statement  signed  by  him  showing  such 
facts  together  with  such  affidavits  or 
papers  as  may  have  been  produced  before 
him  constituting  such  evidence  of  the  age 
of  such  child,  and  the  board  of  health,  at 
a  regular  meeting  thereof,  may  then,  by 
resolution,  provide  that  such  evidence  of 
age  shall  be  fully  entered  on  the  minutes 
of  such  board,  and  shall  be  received  as 
sufficient  evidence  of  the  age  of  such  child 
for  the  purpose  of  this  section. 

(e)  Physicians'  Certificates. — In  cities 
of  the  first  class  only,  in  case  application 
for  the  issuance  of  an  employment  certifi- 
cate shall  be  made  to  such  officer  by  a 
child's  parent,  guardian  or  custodian  who 
alleges  his  inability  to  produce  any  of  the 
evidence  of  age  specified  in  the  preceding 
subdivisions  of  this  section,  and  if  the 
child  is  apparently  at  least  fourteen  years 
of  age,  such  officer  may  receive  and  file  an 
application  signed  by  the  parent,  guardian 


EMPLOYMENT:  WOMEN— CHILDBEN   119 

or  custodian  of  such  child  for  physicians' 
certificates.  Such  application  shall  contain 
the  alleged  age,  place  and  date  of  birth, 
and  present  residence  of  such  child,  to- 
gether with  such  further  facts  as  may  be 
of  assistance  in  determining  the  age  of 
such  child.  Such  application  shall  be  filed 
for  not  less  than  ninety  days  after  date  of 
such  application  for  such  physicians'  cer- 
tificates, for  an  examination  to  be  made  of 
the  statements  contained  therein,  and  in 
case  no  facts  appear  within  such  period  or 
by  such  examination  tending  to  discredit 
or  contradict  any  material  statement  of 
such  application,  then  and  not  otherwise 
the  officer  may  direct  such  child  to  appear 
thereafter  for  physical  examination  before 
two  physicians  officially  designated  by  the 
board  of  health,  and  in  case  such  physi- 
cians shall  certify  in  writing  that  they 
have  separately  examined  such  child  and 
that  in  their  opinion  such  child  is  at  least 
fourteen  years  of  age,  such  officer  shall  ac- 
cept such  certificates  as  sufficient  proof  of 
the  age  of  such  child  for  the  purposes  of 
this  section.  In  case  the  opinions  of  such 
physicians  do  not  concur,  the  child  shall 
be  examined  by  a  third  physician,  and  the 
concurring  opinions  shall  be  conclusive  for 
the  purpose  of  this  section  as  to  the  age  of 
such  child. 


120     WOMAN  AND  NEW  YORK  LAW 

Such  officer  shall  require  the  evidence  of 
age  specified  in  subdivision  (a)  in  prefer- 
ence to  that  specified  in  any  subsequent 
subdivision  and  shall  not  accept  the  evi- 
dence of  age  permitted  by  any  subsequent 
subdivision  unless  he  shall  receive  and  file 
in  addition  thereto  an  affidavit  of  the 
parent  showing  that  no  evidence  of  age 
specified  in  any  preceding  subdivision  or 
subdivisions  of  this  section  can  be  pro- 
duced. Such  affidavit  shall  contain  the 
age,  place  and  date  of  birth,  and  present 
residence  of  such  child,  which  affidavit 
must  be  taken  before  the  officer  issuing  the 
employment  certificate,  who  is  hereby  au- 
thorized and  required  to  administer  such 
oath  and  who  shall  not  demand  or  receive 
a  fee  therefor.  Such  employment  certifi- 
cate shall  not  be  issued  until  such  child 
shall  further  have  personally  appeared  be- 
fore and  been  examined  by  the  officer  issu- 
ing the  certificate,  and  until  such  officer 
shall,  after  making  such  examination,  sign 
and  file  in  his  office  a  statement  that  the 
child  can  read  and  legibly  write  simple 
sentences  in  the  English  language,  and 
that  in  his  opinion  the  child  is  fourteen 
years  of  age  or  upwards  and  has  reached 
the  normal  development  of  a  child  of  its 
age,  and  is  in  sound  health  and  is  physi- 
cally able  to  perform  the  work  which  it 


EMPLOYMENT:  WOMEN— -CHILDREN   121 

intends  to  do.  In  doubtful  cases  such 
physical  fitness  shall  be  determined  by  a 
medical  officer  of  the  board  or  department 
of  health.  Every  such  employment  certifi- 
cate shall  be  signed  in  the  presence  of  the 
officer  issuing  the  same,  by  the  child  in 
whose  name  it  is  issued. 

Contents  of  Certificate. — Such  certificate 
shall  state  the  date  and  place  of  birth  of 
the  child,  and  describe  the  color  of  hair 
and  eyes  and  the  height  and  weight  and 
any  distinguishing  facial  marks  of  such 
child,  and  that  the  papers  required  by  the 
preceding  section  have  been  duly  exam- 
ined, approved  and  filed  and  that  the  child 
named  in  such  certificate  has  appeared  be- 
fore the  officer  signing  the  certificate  and 
been  examined. 

School  Record,  What  to  Contain. — The 
school  record  required  by  this  article  shall 
be  signed  by  the  principal  or  chief  execu- 
tive officer  of  the  school  which  such  child 
has  attended  and  shall  be  furnished  on  de- 
mand to  a  child  entitled  thereto  or  to  the 
board,  department  or  commissioner  of 
health.  It  shall  contain  a  statement  certi- 
fying that  the  child  has  regularly  attended 
the  public  schools  or  schools  equivalent 
thereto  or  parochial  schools  for  not  less 
than  one  hundred  and  thirty  days  during 
the  twelve  months  next  preceding  his  four- 


122     WOMAN  AND  NEW  YOEK  LAW 

teenth  birthday,  or  during  the  twelve 
months  next  preceding  his  application  for 
such  school  record,  and  is  able  to  read  and 
write  simple  sentences  in  the  English  lan- 
guage, has  received  during  such  period  in- 
struction in  reading,  spelling,  writing, 
English  grammar  and  geography  and  is 
familiar  with  the  fundamental  operations 
of  arithmetic  up  to  and  including  frac- 
tions. Such  school  record  shall  also  give 
the  date  of  birth  and  residence  of  the  child 
as  shown  on  the  records  of  the  school  and 
the  name  of  its  parents  or  guardian  or  cus- 
todian. 

Summer  Vacation  Certificate. — Children 
of  the  age  of  twelve  years  or  more  who 
can  read  and  write  simple  sentences  in  the 
English  language  may  be  employed  in  mer- 
cantile and  other  establishments  specified 
in  section  one  hundred  and  sixty-one,  in 
villages  and  cities  of  the  third  class  dur- 
ing the  summer  vacation  of  the  public 
schools  in  the  city  or  school  district  where 
such  children  reside,  upon  obtaining  the 
vacation  certificate  herein  provided.  Such 
certificate  shall  be  issued  in  the  same 
manner,  upon  the  same  conditions,  and  on 
like  proof  that  such  child  is  twelve  years  of 
age  or  upwards,  and  is  in  sound  health,  as 
are  required  for  the  issuance  of  an  employ- 
ment certificate  under  this  article,  except 


EMPLOYMENT:  WOMEN*— CHILDKEN   123 

that  a  school  record  of  such  child  shall  not 
be  required.  The  certificates  provided  for 
in  this  section  shall  be  designated  summer 
vacation  certificates,  and  shall  correspond 
in  form  and  substance  as  nearly  as  prac- 
ticable to  such  employment  certificate,  and 
shall  in  addition  thereto  specify  the  time 
in  which  the  same  shall  remain  in  force 
and  effect,  which  in  no  case  shall  be  other 
than  the  time  in  which  the  public  schools 
where  such  children  reside  are  closed  for 
a  summer  vacation. 

Registry  of  Children  Employed. — The 
owner,  manager  or  agent  of  a  mercantile 
or  other  establishment  employing  children 
shall  keep,  or  cause  to  be  kept,  in  the  office 
of  such  establishment,  a  register,  in  which 
shall  be  recorded  the  name,  birthplace,  age 
and  place  of  residence  of  all  children  so 
employed  under  the  age  of  sixteen  years. 
Such  register  and  the  certificate  filed  in 
such  office  shall  be  produced  for  inspection, 
upon  the  demand  of  an  officer  of  the  board, 
department  or  commissioner  of  health  of 
the  town,  village  or  city  where  such  estab- 
lishment is  situated,  or  if  such  establish- 
ment is  situated  in  a  city  of  the  first  class 
upon  the  demand  of  the  commissioner  of 
labor.  On  termination  of  the  employment 
of  the  child  so  registered  and  whose  cer- 
tificate is  so  filed,  such  certificate  shall  be 


124     WOMAN  AND  NEW  YOKE  LAW 

forthwith  surrendered  by  the  employer  to 
the  child  or  its  parent  or  guardian  or  cus- 
todian. An  officer  of  the  board,  depart- 
ment or  commissioner  of  health  of  the 
town,  village  or  city  where  a  mercantile 
or  other  establishment  mentioned  in  this 
article  is  situated,  or  if  such  establishment 
is  situated  in  a  city  of  the  first  class  the 
commissioner  of  labor,  may  make  demand 
on  an  employer  in  whose  establishment  a 
child  apparently  under  the  age  of  sixteen 
years  is  employed  or  permitted  or  suffered 
to  work,  and  whose  employment  certificate 
is  not  then  filed  as  required  by  this  chap- 
ter, that  such  employer  shall  either  furnish 
him,  within  ten  days,  evidence  satisfactory 
to  him  that  such  child  is  in  fact  over  six- 
teen years  of  age,  or  shall  cease  to  employ 
or  permit  or  suffer  such  child  to  work  in 
such  establishment.  The  officer  may  re- 
quire from  such  employer  the  same  evi- 
dence of  age  of  such  child  as  is  required 
on  the  issuance  of  an  employment  certifi- 
cate; and  the  employer  furnishing  such 
evidence  shall  not  be  required  to  furnish 
any  further  evidence  of  the  age  of  the 
child.  A  notice  embodying  such  demand 
may  be  served  on  such  employer  person- 
ally or  may  be  sent  by  mail  addressed  to 
him  at  said  establishment,  and  if  served  by 
post  shall  be  deemed  to  have  been  served 


EMPLOYMENT :  WOMEN»— CHILDREN  125 

at  the  time  when  the  letter  containing  the 
same  would  be  delivered  in  the  ordinary 
course  of  the  post.  When  the  employer  is 
a  corporation  such  notice  may  be  served 
either  personally  upon  an  officer  of  such 
corporation,  or  by  sending  it  by  post  ad- 
dressed to  the  office  or  the  principal  place 
of  business  of  such  corporation.  The 
papers  constituting  such  evidence  of  age 
furnished  by  the  employer  in  response  to 
such  demand  shall,  except  in  cities  of  the 
first  class,  be  filed  with  the  board,  depart- 
ment or  commissioner  of  health,  and  in 
cities  of  the  first  class  with  the  commis- 
sioner of  labor,  and  a  material  false  state- 
ment made  in  any  such  paper  or  affidavit 
by  any  person  shall  be  a  misdemeanor.  In 
case  such  employer  shall  fail  to  produce 
and  deliver  to  the  officer  of  the  board,  de- 
partment or  commissioner  of  health,  or  in 
cities  of  the  first  class  to  the  commissioner 
of  labor,  within  ten  days  after  such  de- 
mand such  evidence  of  age  herein  required 
by  him,  and  shall  thereafter  continue  to 
employ  such  child  or  permit  or  suffer  such 
child  to  work  in  such  mercantile  or  other 
establishment,  proof  of  the  giving  of  such 
notice  and  of  such  failure  to  produce  and 
file  such  evidence  shall  be  prima  facie  evi- 
dence in  any  prosecution  brought  for  a 
violation  of  this  article  that  such  child  is 


126    WOMAN  AND  NEW  YOKK  LAW 

under  sixteen  years  of  age  and  is  unlaw- 
fully employed. 

Wash-Rooms  and  Water-Closets. — Suit- 
able and  proper  wash-rooms  and  water- 
closets  shall  be  provided  in,  adjacent  to  or 
connected  with  mercantile  establishments 
where  women  and  children  are  employed. 
Such  rooms  and  closets  shall  be  so  located 
and  arranged  as  to  be  easily  accessible  to 
the  employees  of  such  establishments. 

Such  water-closets  shall  be  properly 
screened  and  ventilated,  and  at  all  times 
kept  in  a  clean  condition.  The  water- 
closets  assigned  to  the  female  employees 
of  such  establishments  shall  be  separate 
from  those  assigned  to  the  male  employees. 

If  a  mercantile  establishment  has  not 
provided  wash-rooms  and  water-closets,  as 
required  by  this  section,  the  board  or  de- 
partment of  health  or  health  commis- 
sioners of  the  town,  village  or  city  where 
such  establishment  is  situated,  unless  such 
establishment  is  situated  in  a  city  of  the 
first  class,  in  which  case  the  commissioner 
of  labor  shall  cause  to  be  served  upon  the 
owner,  agent  or  lessee  of  the  building  occu- 
pied by  such  establishment  a  written  notice 
of  the  omission  and  directing  such  owner, 
agent  or  lessee  to  comply  with  the  provi- 
sions of  this  section  respecting  such  wash- 
rooms and  water-closets. 


EMPLOYMENT:  WOMEN1— CHILDKEN   127 

Such  owner  shall,  within  fifteen  days 
after  the  receipt  of  such  notice,  cause  such 
wash-rooms  and  water-closets  to  be  pro- 
vided. 

Lunch-Rooms. — If  a  lunch-room  is  pro- 
vided in  a  mercantile  establishment  where 
females  are  employed,  such  lunch-room 
shall  not  be  next  to  or  adjoining  the  water- 
closets,  unless  permission  is  first  obtained 
from  the  board  or  department  of  health  or 
health  commissioners  of  the  town,  village 
or  city  where  such  mercantile  establish- 
ment is  situated,  unless  such  establishment 
is  situated  in  a  city  of  the  first  class,  in 
which  case  such  permission  must  be  ob- 
tained from  the  commissioner  of  labor. 
Such  permission  shall  be  granted  unless  it 
appears  that  proper  sanitary  conditions  do 
not  exist,  and  it  may  be  revoked  at  any 
lime  by  the  board  or  department  of  health 
or  health  commissioners,  if  it  appears  that 
such  lunch-room  is  kept  in  a  manner  or  in 
a  part  of  a  building  injurious  to  the  health 
of  the  employees,  unless  such  establish- 
ment is  situated  in  a  city  of  the  first  class 
in  which  case  said  permission  may  be  so 
revoked  by  the  commissioner  of  labor. 

Seats  for  Women  in  Mercantile  Estab- 
lishments.— Chairs,  stools  or  other  suitable 
seats  shall  be  maintained  in  mercantile 


128     WOMAN  AND  NEW  YORK  LAW 

establishments  for  the  use  of  female  em- 
ployees therein,  to  the  number  of  at  least 
one  seat  for  every  three  females  employed, 
and  the  use  thereof  by  such  employees 
shall  be  allowed  at  such  times  and  to  such 
extent  as  may  be  necessary  for  the  preser- 
vation of  their  health.  If  the  duties  of  the 
female  employees,  for  the  use  of  whom  the 
seats  are  furnished,  are  to  be  principally 
performed  in  front  of  a  counter,  table, 
desk  or  fixture,  such  seats  shall  be  placed 
in  front  thereof;  if  such  duties  are  to  be 
principally  performed  behind  such  counter, 
table,  desk  or  fixture,  such  seats  shall  be 
placed  behind  the  same. 

Employment  of  Women  and  Children  in 
Basements. — Women  or  children  shall  not 
be  employed  or  permitted  to  work  in  the 
basement  of  a  mercantile  establishment, 
unless  permitted  by  the  board  or  depart- 
ment of  health,  or  health  commissioner  of 
the  town,  village  or  city  where  such  mer- 
cantile establishment  is  situated,  unless 
such  establishment  is  situated  in  a  city  of 
the  first  class,  in  which  case  such  per- 
mission must  be  obtained  from  the  com- 
missioner of  labor.  Such  permission  shall 
be  granted  unless  it  appears  that  such 
basement  is  not  sufficiently  lighted  and 
ventilated,  and  is  not  in  good  sanitary  con- 
dition. 


EMPLOYMENT:  WOMEN— CHILDKEN   129 

Enforcement  of  Article.  —  Except  in 
cities  of  the  first  class  the  board  or  depart- 
ment of  health  or  health  commissioners  of 
a  town,  village  or  city  affected  by  this 
article  shall  enforce  the  same  and  prose- 
cute all  violations  thereof.  Proceedings  to 
prosecute  such  violations  must  be  begun 
within  sixty  days  after  the  alleged  offense 
was  committed.  All  officers  and  members 
of  such  boards,  or  department,  all  health 
commissioners,  inspectors  and  other  per- 
sons appointed  or  designated  by  such 
boards,  departments  or  commissioners  may 
visit  and  inspect,  at  reasonable  hours  and 
when  practicable  and  necessary,  all  mer- 
cantile or  other  establishments  herein 
specified  within  the  town,  village  or  city 
for  which  they  are  appointed.  No  person 
shall  interfere  with  or  prevent  any  such 
officer  from  making  such  visitations  and 
inspections,  nor  shall  he  be  obstructed  or 
injured  by  force  or  otherwise  while  in  the 
performance  of  his  duties.  All  persons 
connected  with  any  such  mercantile  or 
other  establishment  herein  specified  shall 
properly  answer  all  questions  asked  by 
such  officer  or  inspector  in  reference  to  any 
of  the  provisions  of  this  article.  In  cities 
of  the  first  class  the  commissioner  of  labor 
shall  enforce  the  provisions  of  this  article, 
and  for  that  purpose  he  and  his  subordi- 


130     WOMAN  AND  NEW  YOKE  LAW 

nates  shall  possess  all  powers  herein  con- 
ferred upon  town,  village,  or  city  boards 
and  departments  of  health  and  their  com- 
missioners, inspectors,  and  other  officers, 
except  that  the  board  or  department  of 
health  of  said  cities  of  the  first  class  shall 
continue  to  issue  employment  certificates 
as  provided  in  section  one  hundred  and 
sixty-three  of  this  chapter. 

Copy  of  Article  to  be  Posted. — A  copy 
of  this  article  shall  be  posted  in  a  conspic- 
uous place  on  every  floor  in  each  establish- 
ment wherein  three  or  more  persons  are 
employed  who  are  affected  by  its  provi- 
sions. 


BUBEAU  OF  MERCANTILE  INSPEC- 
TION 

Mercantile  Inspector. — There  shall  be  a 
bureau  of  mercantile  inspection,  which 
shall  be  under  the  immediate  charge  of  a 
mercantile  inspector,  but  subject  to  the 
direction  and  supervision  of  the  commis- 
sioner of  labor.  The  mercantile  inspector 
shall  be  appointed  and  be  at  pleasure  re- 
moved by  the  commissioner  of  labor,  and 
shall  receive  such  annual  salary  not  to  ex- 
ceed two  thousand  dollars  as  may  be  appro- 
priated therefor. 

Deputies. — The  commissioner  of  labor 
may  appoint  from  time  to  time  not  more 
than  ten  deputy  mercantile  inspectors,  not 
less  than  two  of  whom  shall  be  women,  and 
who  may  be  removed  by  him  at  any  time. 

Prohibited  Employment  of  Children  in 
Street  Trades.— No  male  child  under  ten, 
and  no  girl  under  sixteen  years  of  age, 
shall  in  any  city  of  the  first  or  second  class 
sell  or  expose  or  offer  for  sale  newspapers, 
magazines  or  periodicals  in  any  street  or 
public  place. 

Prohibited  Employment  of  Women  and 
Children,— No  child  under  the  age  of  six- 

131 


teen  years  shall  be  employed  or  permitted 
to  work  in  operating  or  assisting  in  oper- 
ating any  of  the  following  machines:  cir- 
cular or  band  saws,  woodshapers,  wood- 
jointers,  planers,  sandpaper  or  wood  pol- 
ishing machinery,  picker  machines  or 
machines  used  in  picking  wool,  cotton,  hair 
or  any  upholstering  material;  paper  lace 
machines;  burnishing  machines  in  any  tan- 
nery or  leather  manufactory;  job  or  cylin- 
der printing  presses  having  motive  power 
other  than  foot;  wood-turning  or  boring 
machinery;  drill  presses;  metal  or  paper 
cutting  machines;  corner  staying  machines 
in  paper-box  factories;  stamping  machines 
used  in  sheet  metal  and  tinware  manufac- 
turing or  in  washer  and  nut  factories; 
machines  used  in  making  corrugating 
rolls;  steam  boilers;  dough  brakes  or 
cracker  machinery  of  any  description;  wire 
or  iron  straightening  machinery;  rolling 
mill  machinery,  power  punches  or  shears; 
washing,  grinding  or  mixing  machinery, 
calendar  rolls  in  rubber  manufacturing; 
or  laundering  machinery.  No  child  under 
the  age  of  sixteen  years  shall  be  employed 
or  permitted  to  work  at  adjusting  or  assist- 
ing in  adjusting  any  belt  to  any  machinery; 
oiling  or  assisting  in  oiling,  wiping  or 
cleaning  machinery;  or  in  any  capacity  in 
preparing  any  composition  in  which  dan- 


BUREAU  OF  INSPECTION          133 

gerous  or  poisonous  acids  are  used;  or  in 
the  manufacture  or  packing  of  paints,  dry 
colors,  or  red  or  white  lead;  or  in  dipping, 
dyeing,  or  packing  matches ;  or  in  the  man- 
ufactiire,  packing  or  storing  of  powder, 
dynamite,  nitro  glycerine,  compounds, 
fuses,  or  other  explosives;  or  in  or  about 
any  distillery,  brewery,  or  any  other  estab- 
lishment where  malt  or  alcoholic  liquors 
are  manufactured,  packed,  wrapped,  or 
bottled;  and  no  female  under  the  age  of 
sixteen  shall  be  employed  or  permitted  to 
work  in  any  capacity  where  such  employ- 
ment compels  her  to  remain  standing  con- 
stantly. No  child  under  the  age  of  sixteen 
years  shall  be  employed  or  permitted  to 
have  the  care,  custody  or  management  of 
or  to  operate  an  elevator  either  for  freight 
or  passengers.  No  person  under  the  age 
of  eighteen  years  shall  be  employed  or  per- 
mitted to  have  the  care,  custody  or  man- 
agement of  or  to  operate  an  elevator  either 
for  freight  or  passengers  running  at  a 
speed  of  over  two  hundred  feet  a  minute. 
No  male  person  under  eighteen  years  or 
woman  under  twenty-one  years  of  age  shall 
be  permitted  or  directed  to  clean  machin- 
ery while  in  motion.  No  male  child  under 
the  age  of  eighteen  years,  nor  any  female, 
shall  be  employed  in  any  factory  in  this 
State  in  operating  or  using  any  emery, 


tripoli,  rouge,  corundum,  stone,  carborun- 
dum or  any  abrasive,  or  emery  polishing 
or  buffing  wheel,  where  articles  of  the 
baser  metals  or  of  iridium  are  manufac- 
tured. 

Accommodations  for  Women  in  Fac- 
tories.— In  every  factory  there  shall  be  pro- 
vided at  all  times  for  the  use  of  employees 
a  sufficient  supply  of  clean  and  pure  drink- 
ing water.  Such  water  shall  be  supplied 
through  proper  pipe  connections  with 
water  mains  through  which  is  conveyed  the 
water  used  for  domestic  purposes,  or,  from 
a  spring  or  well  or  body  of  pure  water;  if 
such  drinking  water  be  placed  in  recep- 
tacles in  the  factory,  such  receptacles  shall 
be  properly  covered  to  prevent  contamina- 
tion and  shall  be  thoroughly  cleaned  at 
frequent  intervals.  In  every  factory  there 
shall  be  provided  and  maintained  for  the 
use  of  employees  suitable  and  convenient 
wash  rooms,  adequately  equipped  with 
sink  and  proper  water  service.  Where 
females  are  employed,  dressing  or  emer- 
gency rooms  shall  be  provided  for  their 
use;  each  such  room  shall  have  at  least  one 
window  opening  to  the  outer  air  and  shall 
be  enclosed  by  means  of  solid  partitions 
or  walls.  In  brass  and  iron  foundries  suit- 
able provisions  shall  be  made  and  main- 
tained for  drying  the  working  clothes  of 


BUREAU  OF  INSPECTION          135 

persons  employed  therein.  In  every  fac- 
tory there  shall  be  provided  suitable  and 
convenient  water-closets  for  each  sex,  in 
such  number  as  the  commissioner  of  labor 
may  determine.  Such  water-closets  shall 
be  properly  screened,  lighted,  ventilated 
and  kept  clean  and  sanitary;  the  enclosure 
of  each  closet  shall  be  kept  clean  and  sani- 
tary and  free  from  all  obscene  writing  and 
marking.  The  water-closets  used  by 
females  shall  be  entirely  separated  from 
those  used  by  males  and  the  entrances 
thereto  shall  be  effectively  screened.  The 
water-closets  shall  be  maintained  inside 
the  factory  whenever  practicable  and  in  all 
cases  when  required  by  the  commissioner 
of  labor. 


PROTECTION  OF  HER  PERSON  AND 
MORALS 

Protection  of  a  Female  Child. — The 
State  endeavors  to  protect  the  person  of 
a  female  child  from  pollutions  and  viola- 
tions by  stringent  laws  providing  severe 
punishments.  Until  she  has  reached  a  cer- 
tain age  a  girl  is  presumed  by  the  law  to 
be  incapable  of  consenting  to  an  act  of 
sexual  immorality.  Fourteen  years  is  re- 
quired in  this  State. 

Abduction. — A  person  who : 

1.  Takes,  receives,  employs,  harbors  or 
uses,  or  causes  or  procures  to  be  taken,  re- 
ceived, employed  or  harbored  or  used,  a 
female  under  the  age  of  eighteen  years,  for 
the  purpose  of  prostitution;  or,  not  being 
her  husband,  for  the  purpose   of  sexual 
intercourse;  or,  without  the  consent  of  her 
father,  mother,  guardian  or  other  person 
having  legal  charge  of  her  person,  for  the 
purpose  of  marriage ;  or, 

2.  Inveigles    or    entices    an    unmarried 
female,  of  previous  chaste  character,  into 
a  house  of  ill-fame  or  of  assignation,  or 
elsewhere,  for  the  purpose  of  prostitution 
or  sexual  intercourse ;  or, 

136 


PEOTECTION:  PEKSON— MOEALS    137. 

3.  Takes  or  detains  a  female  unlawfully 
against  her  will,  with  the  intention  to  com- 
pel her,  by  force,  menace  or  duress,  to 
marry  him,  or  to  marry  any  other  person, 
or  to  be  denied;  or, 

4.  Being  parent,  guardian  or  other  per- 
son having  legal  charge  of  the  person  of 
a  female  under  the  age  of  eighteen  years, 
consents  to  her  taking  or  detaining  by  any 
person  for  the  purpose  of  prostitution  or 
sexual  intercourse; 

Is  guilty  of  abduction  and  punishable  by 
imprisonment  for  not  more  than  ten  years, 
or  by  a  fine  of  not  more  than  one  thousand 
dollars,  or  by  both. 

Bigamy. — A  person  who,  having  a  hus- 
band or  wife  living,  marries  another  per- 
son, is  guilty  of  bigamy  and  is  punishable 
by  imprisonment  in  a  penitentiary  or  state 
prison  for  not  more  than  five  years. 

Exceptions. — This  law  does  not  extend: 

1.  To  a  person  whose  former  husband  or 
wife,  has  been  absent  for  five  years  suc- 
cessively  then   last   past,    without   being 
known  to  him  or  her  within  that  time  to 
be  living,  and  believed  by  him  or  her  to 
be  dead;  or, 

2.  To  a  person  whose  former  marriage 
has  been  pronounced  void,  or  annulled,  or 
dissolved,  by  the  judgment  of  a  court  of 


138     WOMAN  AND  NEW  YORK  LAW 

competent  jurisdiction,  for  a  cause  other 
than  his  or  her  adultery;  or, 

3.  To  a  person  who,  being  divorced  for 
his  or  her  adultery,  has  received  from  the 
court  which  pronounced  the  divorce,  per- 
mission to  marry  again;  or, 

4.  To  a  person  whose  former  husband  or 
wife  has  been  sentenced  to  imprisonment 
for  life. 

Compelling  Woman  to  Marry. — A  person 
who  by  force,  menace  or  duress,  compels 
a  woman  against  her  will  to  marry  him,  or 
to  marry  any  other  person,  or  to  be  defiled, 
is  punishable  by  imprisonment  for  a  term 
not  exceeding  ten  years,  or  by  a  fine  of  not 
more  than  one  thousand  dollars,  or  by  both. 

No  Conviction  on  Certain  Testimony. — 
No  conviction  can  be  had  for  compulsory 
marriage  upon  the  testimony  of  the  female 
compelled,  unsupported  by  other  evidence. 

Compulsory  Prostitution  of  Wife. — Any 
man  who  by  force,  fraud,  intimidation  or 
threats,  places  or  leaves,  or  procures  any 
other  person  to  place  or  leave,  his  wife  in 
a  house  of  prostitution^  or  to  lead  a  life  of 
prostitution,  shall  be  guilty  of  a  felony,  and 
upon  conviction  thereof  shall  be  impris- 
oned for  not  more  than  ten  years. 

Seduction  Under  Promise  of  Marriage. — 
A  person  who,  under  promise  of  marriage, 
seduces  and  has  sexual  intercourse  with  an 


PROTECTION:  PERSON— MORALS    139 

unmarried  female  of  previous  chaste  char- 
acter, is  punishable  by  imprisonment  for 
not  more  than  five  years,  or  by  a  fine  of 
not  more  than  one  thousand  dollars  or 
both. 

The  crime  of  rape  is  punishable  by  im- 
prisonment for  not  more  than  twenty 
years. 

Compulsory  Prostitution  of  Women. — 
1.  Any  person  who  shall  place  any  female 
in  the  charge  or  custody  of  any  other  per- 
son for  immoral  purposes  or  in  a  house  of 
prostitution  with  intent  that  she  shall  live 
a  life  of  prostitution;  or  any  person  who 
shall  compel  any  female  to  reside  with  him 
or  with  any  other  person  for  immoral  pur- 
poses, or  for  the  purposes  of  prostitution, 
or  shall  compel  any  such  female  to  reside 
in  a  house  of  prostitution,  or  compel  her 
to  live  a  life  of  prostitution,  is  punishable 
by  a  fine  of  not  less  than  one  thousand  dol- 
lars, or  by  imprisonment  for  not  less  than 
one  year  nor  more  than  three  years,  or  by 
both  such  fine  and  such  imprisonment. 

2.  Any  person  who  shall  receive  any 
money  or  other  valuable  thing  for  or  on 
account  of  placing  in  a  house  of  prostitu- 
tion or  elsewhere  any  female  for  the  pur- 
pose of  causing  her  to  cohabit  with  any 
male  person  or  persons  to  whom  she  is  not 
married  shall  be  guilty  of  a  misdemeanor. 


140     WOMAN  AND  NEW  YORK  LAW 

3.  Any  person  who  shall  pay  any  money 
or  other  valuable  thing  to  procure   any 
female  for  the  purpose  of  placing  her  for 
immoral  purposes  in  any  house  of  prostitu- 
tion or  elsewhere  against  her  will,  shall  be 
fined  not  less  than  one  thousand  dollars  nor 
more  than  five  thousand  dollars,  and  be 
imprisoned  for  a  period  not  less  than  one 
year,  nor  more  than  three  years. 

4.  Every  person  who   shall  knowingly 
receive  any  money  or  other  valuable  thing 
for  or  on  account  of  procuring  and  placing 
in  the  custody  of  another  person  for  im- 
moral purposes  any  woman,  with  or  with- 
out her  consent,  is  punishable  by  imprison- 
ment not  exceeding  five  years  and  a  fine 
not  exceeding  one  thousand  dollars. 

5.  No  conviction  shall  be  had  under  this 
section  upon  the  testimony  of  the  female 
unless  supported  by  other  evidence. 


ABORTION 

Definition  and  Punishment  of  Abortion. 

—A  person  who,  with  intent  thereby  to 
procure  the  miscarriage  of  a  woman,  unless 
the  same  is  necessary  to  preserve  the  life 
of  the  woman,  or  of  the  child  with  which 
she  is  pregnant,  either: 

1.  Prescribes,  supplies,  or  administers  to 
a  woman,  whether  pregnant  or  not,  or  ad- 
vises or  causes  a  woman  to  take  any  medi- 
cine, drug,  or  substance;  or, 

2.  Uses,  or  causes  to  be  used,  any  instru- 
ment or  other  means, 

Is  guilty  of  abortion,  and  is  punishable 
by  imprisonment  in  a  state  prison  for  not 
more  than  four  years,  or  in  a  county  jail 
for  not  more  than  one  year. 

Killing  of  Child  in  Attempting  Mis- 
carriage.— A  pregnant  woman,  who  takes 
any  medicine,  drug,  or  substance,  or 
uses  or  submits  to  the  use  of  any  instru- 
ment or  other  means,  with  intent  thereby 
to  produce  her  own  miscarriage,  unless  the 
same  is  necessary  to  preserve  her  life,  or 
that  of  the  child  whereof  she  is  pregnant, 
is  punishable  by  imprisonment  for  not  less 
than  one  year,  nor  more  than  four  years. 

141 


142     WOMAN  AND  NEW  YOEK  LAW 

Selling  Drugs  or  Instruments  to  Pro- 
cure a  Miscarriage. — A  person  who  man- 
ufactures, gives  or  sells  an  instrument, 
a  medicine  or  drug,  or  any  other  substance, 
with  intent  that  the  same  may  be  unlaw- 
fully used  in  procuring  the  miscarriage  of 
a  woman,  is  guilty  of  a  felony, 


POLICE  MATRONS 

Police  Station  Houses  for  the  Detention 
of  Women;  How  Designated. — The  mayor 
of  every  city  containing  a  population  of 
twenty-five  thousand  shall  and  the  mayor 
of  every  other  city  when  authorized  by  a 
resolution  of  the  common  council  may 
designate  one  or  more  station  houses  with- 
in his  city  for  the  detention  and  confine- 
ment of  all  women  under  arrest  in  such 
city.  Such  mayor  or  board  of  commis- 
sioners of  police  may  at  any  time  designate 
for  such  purpose  any  additional  station 
house  or  houses,  or  may  revoke  the  desig- 
nation of  any  station  house  or  houses  there- 
tofore designated,  provided  that  at  least 
one  such  station  house  shall  at  all  times 
be  so  designated  for  such  purpose  in  each 
city. 

Women  Under  Arrest  to  Have  Separate 
Accommodations. — It  shall  be  the  duty  of 
the  boards  of  commissioners  of  police  in 
every  city,  or  if  there  be  no  board  of  police, 
then  of  the  mayor  of  such  city,  to  provide 
sufficient  accommodations  for  women  held 
under  arrest  to  keep  them  separate  and 
apart  from  the  cells,  corridors  and  apart- 

143 


144     WOMAN  AND  NEW  YOEK  LAW 

ments  provided  for  males  under  arrest,  and 
to  so  arrange  each  station  house  that  no 
communication  can  be  had  between  the 
men  and  women  therein  confined,  except 
with  the  consent  of  the  matrons  and  of- 
ficers in  charge  of  such  station  house. 

Proceeding  in  Case  of  Arrest  of  Women. 
— Whenever  a  woman  is  arrested  and  taken 
to  a  police  station,  to  which  a  matron  is 
attached,  it  shall  be  the  duty  of  the  officer 
in  charge  of  the  station  to  cause  such 
matron  to  be  summoned  forthwith,  and 
whenever,  in  any  city  in  which  a  police 
matron  has  been  appointed,  a  woman  is 
arrested  and  taken  to  a  station  house  to 
which  no  matron  is  attached,  it  shall  be 
the  duty  of  such  officer  to  cause  such 
woman  to  be  removed  as  soon  as  possible 
to  the  nearest  station  house  within  such 
city  to  which  a  police  matron  is  attached. 
No  such  separate  confinement  nor  any  such 
removal  of  any  woman  shall  operate  to 
take  from  any  court  any  jurisdiction  it  has. 


SUPPORT  OF  BASTARDS 

Penalty  for  Removing  Mother  of  Bas- 
tard; How  Supported  After  Removal. — If 

the  mother  of  any  bastard,  or  of  any  child 
likely  to  be  born  a  bastard,  shall  be  re- 
moved, brought  or  enticed  into  any  county, 
city  or  town  from  any  other  county,  city 
or  town  of  this  State,  for  the  purpose  of 
avoiding  the  charge  of  such  bastard  or 
child  upon  the  county,  city  or  town  from 
which  she  shall  have  been  brought  or  en- 
ticed to  remove,  the  same  penalties  shall 
be  imposed  on  every  such  person  so  bring- 
ing, removing  or  enticing  such  mother  to 
remove,  as  are  provided  is  the  case  of  the 
fraudulent  removal  of  a  poor  person.  Such 
mother,  if  unable  to  support  herself,  shall 
be  supported  during  her  confinement  and 
recovery  therefrom,  and  her  child  shall  be 
supported,  by  the  county  superintendents 
of  the  poor  of  the  county  where  she  shall 
be,  if  no  provision  be  made  by  the  father 
of  such  child. 

Mother  and  Child  Poor  Persons;  Pro- 
ceedings Against  County  or  Town  from 
Which  She  Was  Removed. — Such  mother 
and  her  child  shall,  in  all  respects,  be 

145 


146     WOMAN  AND  NEW  YOKK  LAW 

deemed  poor  persons;  and  the  same  pro- 
ceedings may  be  had  by  the  county  super- 
intendents to  charge  the  town,  city  or 
county  from  which  she  was  removed  or 
enticed,  for  the  expense  of  supporting  her 
and  her  child,  as  are  provided  in  the  case 
of  poor  persons  fraudulently  or  clandes- 
tinely removed;  and  an  action  may  be 
maintained  in^  the  same  manner  for  said 
expenses-  and  for  all  expenses  properly  in- 
curred in  apprehending  the  father  of  such 
child,  or  in  seeking  to  compel  its  support 
by  such  father  or  its  mother. 

Mother  and  Bastard;  How  to  be  Sup- 
ported.— The  mother  of  every  bastard,  who 
shall  be  unable  to  support  herself,  during 
her  confinement  and  recovery  therefrom, 
and  every  bastard,  after  it  is  born,  shall  be 
supported  as  other  poor  persons  are  re- 
quired to  be  supported  by  the  provisions 
of  this  chapter,  at  the  expense  of  the  city 
or  town  where  such  bastard  shall  be  born, 
if  the  mother  have  a  legal  settlement  in 
such  city  or  town,  and  if  it  be  required  to 
support  its  own  poor;  if  the  mother  have 
a  settlement  in  any  other  city  or  town  of 
the  same  county,  which  is  required  to  sup- 
port its  own  poor,  then  at  the  expense  of 
such  other  city  or  town;  in  all  other  cases, 
they  shall  be  supported  at  the  expense  of 
the  county  where  such  bastard  shall  be 
born. 


SUPPOKT  OF  BASTAEDS          147 

Mother  and  Child  Not  to  be  Removed 
Without  Her  Consent. — The  mother  and 
her  child  shall  not  be  removed  from  any 
city  or  town  to  any  other  city  or  town  in 
the  same  county  nor  from  one  county  to 
any  other  county,  in  any  case  whatever, 
unless  voluntarily  taken  to  the  county,  city 
or  town  liable  for  their  support,  by  the 
county  superintendents  of  such  county  or 
the  overseers  of  the  poor  of  such  city  or 
town. 

Overseers  to  Notify  Superintendents  of 
Cases  of  Bastardy;  When  County  Charge- 
able.— The  overseers  of  the  poor  of  any 
city  or  town  where  a  woman  shall  be  preg- 
nant with  a  child,  likely  to  be  born  a  bas- 
tard, or  where  a  bastard  shall  be  born, 
which  child  or  bastard  shall  be  chargeable, 
or  likely  to  become  chargeable  to  the 
county,  shall,  immediately  on  receiving  in- 
formation of  such  fact,  give  notice  thereof 
to  the  county  superintendents,  or  one  of 
them. 

Duty  of  Superintendents  to  Provide  for 
Mother  and  Child. — The  county  superin- 
tendents shall  provide  for  the  support  of 
such  bastard  and  its  mother,  in  the  same 
manner  as  for  the  poor  of  such  county. 

Until  Taken  Charge  of  by  Superintend- 
ents, to  be  Supported  by  Overseers. — Until 
the  county  superintendents  take  charge  of 


148     WOMAN  AND  NEW  YOEK  LAW 

and  provide  for  the  support  of  such  bas- 
tard and  its  mother  so  chargeable  to  the 
county,  the  overseers  of  the  poor  of  the 
city  or  town  shall  maintain  and  provide  for 
them;  and  for  that  purpose,  the  same  pro- 
ceedings shall  be  had  as  for  the  support 
of  a  poor  person  chargeable  to  the  county, 
who  can  not  be  conveniently  removed  to 
the  county  almshouse. 

Overseers  of  Towns  to  Support  Bastard 
and  Mother,  Whether  Chargeable  or  Not. 
— Where  a  woman  shall  be  pregnant  with  a 
child  likely  to  be  born  a  bastard  or  to  be- 
come chargeable  to  a  city  or  town,  or  where 
a  bastard  shall  be  born  chargeable,  or 
likely  to  become  chargeable  to  a  city  or 
town,  the  overseers  of  the  poor  of  the  city 
or  town  where  such  bastard  shall  be  born, 
or  likely  to  be  born,  whether  the  mother 
have  a  legal  settlement  therein  or  not,  shall 
provide  for  the  support  of  such  child  and 
the  sustenance  of  its  mother  during  her 
confinement  and  recovery  therefrom,  in  the 
same  manner  as  they  are  authorized  by  this 
chapter  to  provide  for  and  support  the 
poor  of  their  city  or  town. 

Moneys  Received  by  Overseers  from 
Parents  of  Bastard,  How  Applied  and  Ac- 
counted for. — Where  any  money  shall  be 
paid  to  any  overseer,  pursuant  to  the  order 
of  any  two  justices,  by  any  putative  father, 


STJPPOKT  OF  BASTARDS  149 

or  by  the  mother  of  any  bastard,  the  over- 
seers may  expend  the  same  directly,  in  the 
support  of  such  child,  and  the  sustenance 
of  its  mother  as  aforesaid,  without  paying 
the  same  into  the  county  treasury.  They 
shall  annually  account,  on  oath,  to  the 
board  of  town  auditors,  or  to  the  proper 
auditing  board  of  a  city,  at  the  same  time 
that  other  town  or  city  officers  are  required 
to  account  for  expenditures  of  all  moneys 
so  received  by  them,  and  shall  pay  over 
the  balance  in  their  hands,  and  under  like 
penalties,  as  are  provided  by  this  chapter, 
in  respect  to  the  poor  moneys  in  their 
hands. 

When  Moneys  Received  on  Account  of 
Bastard  Chargeable  to  County;  How  to  be 
Disposed  of. — All  moneys  which  shall  be 
ordered  to  be  paid  by  the  putative  father, 
or  by  the  mother  of  a  bastard  chargeable 
to  any  county,  shall  be  collected  for  the 
benefit  of  such  county;  and  all  overseers  of 
the  poor,  superintendents,  sheriffs,  and 
other  officers,  shall  within  fifteen  days  after 
the  receipt  of  any  such  moneys,  pay  the 
same  into  the  county  treasury.  Any  officer 
neglecting  to  make  such  payment  shall  be 
liable  to  an  action  by  and  in  the  name  of 
the  county,  for  all  moneys  so  received  and 
withheld,  with  interest  from  the  time  of 
receipt,  at  the  rate  of  ten  per  centum;  and 


150     WOMAN  AND  NEW  YOEK  LAW 

shall  forfeit  a  sum  equal  to  tliat  so  with- 
held, to  be  sued  for  and  recovered  by  and 
in  the  name  of  the  county. 

Disputes  Concerning  Settlement  of  Bas- 
tard; How  Determined. — When  a  dispute 
shall  arise  concerning  the  legal  settlement 
of  the  mother  of  a  bastard,  or  of  a  child 
born  or  likely  to  be  born  a  bastard,  in  any 
city  or  town,  the  same  shall  be  determined 
by  the  county  superintendents  of  the  poor, 
upon  a  hearing  of  the  parties  interested,  in 
the  same  manner  and  with  the  same  effect 
as  they  are  authorized  to  determine  the 
settlement  of  a  poor  person  under  this 
chapter. 

Proceedings  When  Bastard  is  Charge- 
able to  Another  Town. — When  a  bastard 
shall  be  born,  or  be  likely  to  be  born  in  a 
town  or  city,  when  the  legal  settlement  of 
the  mother  is  in  another  town  or  city  of 
the  same  county,  which  is  required  by  law 
to  support  its  own  poor,  the  overseers  of 
the  poor  of  the  town  or  city  where  such 
bastard  shall  be  born,  or  be  likely  to  be 
born,  shall  give  the  like  notice  to  the  over- 
seers of  the  town  or  city  where  the 
mother's  settlement  may  be,  as  is  required 
in  the  case  of  a  person  becoming  a  poor 
person,  under  the  like  circumstances,  and 
the  same  proceedings  shall  be  had,  in  all 


SUPPOET  OF  BASTAEDS  151 

respects,  to  determine  the  liability  of  such 
town  or  city  as  in  the  case  of  poor  persons. 

The  overseers  of  the  town  or  city  to 
which  the  mother  of  such  bastard  belongs 
may,  before  the  confinement  of  such 
mother,  or  at  any  time  after  the  expiration 
of  two  months  after  her  delivery,  if  her  sit- 
uation will  permit  it,  take  and  support 
such  mother  and  her  child. 

If  they  omit  to  do  so,  and  fail  to  obtain 
the  determination  of  the  county  superin- 
tendents in  their  favor  on  the  question  of 
settlement,  the  town  or  city  to  which  the 
mother  belongs  shall  be  liable  to  pay  all 
the  expenses  of  the  support  of  such  bas- 
tard, and  of  its  mother  during  her  confine- 
ment and  recovery  therefrom;  which  ex- 
penses, after  being  allowed  by  the  county 
superintendents,  shall  be  assessed,  together 
with  the  lawful  interest  on  the  moneys  ex- 
pended, on  the  town  or  city  to  which  such 
mother  belongs,  and  shall  be  collected  in 
the  same  manner  as  provided  for  poor  per- 
sons supported  under  the  same  circum- 
stances, and  the  moneys  so  collected  shall 
be  paid  to  the  county  treasurer,  for  the 
benefit  of,  and  to  be  credited  to,  the  town 
which  incurred  such  expenses. 

Mode  of  Ascertaining  Sum  to  be  Allowed 
for  Support  of  Bastard,— When  any  town 


152     WOMAN  AND  NEW  YORK  LAW 

is  required  to  support  a  bastard,  and  its 
mother,  whether  the  mother  have  a  settle- 
ment in  such  town  or  not,  and  no  moneys 
shall  be  received  from  the  putative  father 
or  from  the  mother,  to  defray  the  expense 
of  such  support,  the  overseers  of  the  poor 
shall  apply  to  the  supervisor  of  the  town 
and  obtain  an  order  for  the  support  of 
such  bastard,  and  the  sustenance  of  its 
mother  during  her  confinement  and  recov- 
ery therefrom,  and  the  sum  to  be  allowed 
therefor,  in  the  same  manner  as  is  required 
in  the  case  of  poor  persons,  and  the  moneys 
paid  or  contracted  to  be  paid  by  the  over- 
seer, pursuant  to  such  order,  shall  be  paid 
by  the  county  treasurer  in  the  same  manner 
as  for  poor  persons,  and  be  charged  to  the 
town  to  whose  officers  such  payment  shall 
be  made. 

When  Mother  and  Child  to  be  Removed 
to  County  Almshouse.  —  If  there  be  a 
county  almshouse  in  any  county  where  the 
towns  are  required  to  support  their  own 
poor,  the  overseers  of  the  poor  of  a  town 
where  a  bastard  shall  be  born,  or  shall  be 
likely  to  be  born,  may,  with  the  approval 
of  the  county  superintendents  or  any  two 
of  them,  and  when  the  situation  of  the 
mother  will  allow  it,  remove  the  mother  of 
such  bastard,  with  her  child,  to  such  aims- 
house,  in  the  same  manner  as  poor  persons 


SUPPOKT  OF  BASTAKDS  153 

may  be  removed;  the  expenses  of  which  re- 
moval shall  be  defrayed  in  like  manner, 
and  such  mother  and  her  child  shall  be  con- 
sidered as  poor  of  the  town  so  liable  for 
their  support,  and  the  expense  shall  in  like 
manner  be  estimated  and  paid. 

Compromise  with  Father  of  Bastard; 
When  Mother  May  Receive  Money. — 
Superintendents  and  overseers  of  the  poor 
may  make  such  compromise  and  arrange- 
ments with  the  putative  father  of  any  bas- 
tard child  within  their  jurisdiction,  rela- 
tive to  the  support  of  such  child,  as  they 
shall  deem  equitable  and  just,  and  there- 
upon discharge  such  putative  father  from 
all  further  liability  for  the  support  of  such 
bastard. 

Whenever  a  compromise  is  made  with 
the  putative  father  of  a  bastard  child,  the 
mother  of  such  child,  on  giving  security 
for  the  support  of  the  child,  and  to  in- 
demnify the  city  and  county  or  the  town 
and  county,  from  the  maintenance  of  the 
child,  to  the  satisfaction  of  the  officers 
making  the  compromise,  shall  be  entitled 
to  receive  the  moneys  paid  by  such  puta- 
tive father  as  the  consideration  of  such 
compromise.  If  the  mother  of  such  child 
shall  be  unable  to  give  the  security,  but 
shall  be  able  and  willing  to  nurse  and  take 
care  of  the  child,  she  shall  be  paid  the 


154     WOMAN  AND  NEW  YORK  LAW 

same  weekly  allowance  for  nursing  and 
taking  care  of  the  child,  out  of  the  moneys 
paid  by  the  father  on  such  compromise, 
as  he  shall  have  been  liable  to  pay  by  the 
order  of  filiation;  such  weekly  sum  to  be 
paid  the  mother,  may  be  prescribed,  regu- 
lated or  reduced,  as  in  the  case  of  an  order 
of  filiation. 

Compromise  with  Putative  Fathers  in 
New  York. — The  commissioners  of  public 
charities  of  the  city  of  New  York,  or  any 
two  of  them,  may  make  such  compromise 
and  arrangements  with  the  putative 
fathers  of  bastard  children  in  said  city, 
relative  to  the  support  of  such  children, 
as  they  shall  deem  equitable  and  just,  and 
thereupon  may  discharge  such  putative 
fathers  from  all  further  liability  for  the 
support  of  such  bastards. 

Commitment  of  Women;  Notice;  Trans- 
portation; Attendants. — Any  woman  over 
the  age  of  sixteen  years  who  shall  be  con- 
victed of  felony  in  any  of  the  courts  of 
this  State  shall,  when  the  sentence  im- 
posed is  one  year  or  more,  be  sentenced 
to  imprisonment  in  the  state  prison  for 
women  except  as  provided  by  section 
twenty-one  hundred  and  eighty-seven  of 
the  penal  law.  The  clerk  of  the  court  im- 
posing such  sentence  shall  immediately 
notify  the  agent  and  warden  of  the  An- 


SUPPOET  OF  BASTAEDS  155 

burn  prison  thereof,  and  such  agent  and 
warden  shall  cause  such  convict  to  be 
transported  in  the  company  of  at  least  one 
other  woman  to  such  state  prison  for 
women,  and  the  expenses  of  such  transpor- 
tation shall  be  paid  as  a  part  of  the  ex- 
penses of  the  maintenance  of  the  prison. 

Children  of  Women  Convicts. — If  any 
woman  committed  to  any  state  prison,  at 
the  time  of  such  commitment  is  a  mother 
of  a  nursing  child  in  her  care  under  one 
year  of  age,  or  if  a  child  shall  be  born  to 
any  woman  after  such  commitment  to  a 
state  prison,  such  child  may  accompany  its 
mother  to  and  remain  in  such  institution 
until  it  is  two  years  of  age,  and  must  then 
be  removed  therefrom,  unless  the  term  of 
imprisonment  of  such  woman  will  expire 
within  two  years  from  the  time  said  child 
thus  reaches  two  years  of  age.  The  agent 
and  warden,  superintendent  or  officer  in 
charge  of  any  state  prison,  shall  cause 
such  child  when  he  attains  the  age  of  two 
years  to  be  placed  in  an  asylum  for  chil- 
dren in  this  State  or  may  commit  such 
child  to  the  care  and  custody  of  some  rela- 
tive or  proper  person  willing  to  assume 
such  care.  If  such  woman,  at  the  time  of 
such  commitment,  shall  be  the  mother  of 
and  have  under  her  exclusive  care  a  child 
more  than  one  year  of  age,  which  might 


otherwise  be  left  without  proper  care  or 
guardianship,  the  justice  or  magistrate 
committing  such  woman  shall  cause  such 
child  to  be  committed  to  such  asylum  as 
may  be  provided  by  law  for  such  pur- 
poses, or  to  the  care  and  custody  of  some 
relative  or  proper  person  willing  to  as- 
sume such  care. 

Female  Attendants  for  Feeble-minded 
Women  in  Transit  to  or  from  Institutions. 
— In  every  order,  commitment  or  direction 
made  by  any  court,  judge  or  other  officer 
for  the  confinement  of  a  feeble-minded 
woman  in  any  public  institution  or  other 
place,  not  located  at  the  same  place  where 
such  feeble-minded  person  may  be  at  the 
time  such  order,  commitment  or  direction 
is  made,  such  court,  judge  or  other  officer 
shall  also  direct  therein  that  such  feeble- 
minded woman  shall  have  as  an  attendant 
at  least  one  suitable  adult  woman,  while 
in  custody  pursuant  to  such  order,  com- 
mitment or  direction,  and  while  going  to 
such  public  institution  or  other  place;  and 
no  officer  or  other  person  shall  keep  in  his 
custody,  or  take  to  any  public  institution 
or  other  place  for  the  custody  or  confine- 
ment of  a  feeble-minded  person,  any  feeble- 
minded woman  unless  accompanied  by 
such  an  attendant.  Whenever  any  feeble- 
minded woman  confined  in  any  institution 


SUPPORT  OF  BASTARDS  157 

of  this  State,  under  and  pursuant  to  a  com- 
mitment or  order  of  any  court,  judge  or 
other  officer,  is  to  be  transferred  from  one 
institution  to  another  institution,  or  from 
any  public  institution  to  a  point  outside  of 
the  city,  village  or  town  where  said  public 
institution  is  located,  the  board  of  man- 
agers of  the  institution  where  said  feeble- 
minded woman  is  confined  shall  cause  said 
feeble-minded  woman,  when  so  removed 
and  transported,  to  be  accompanied  by 
one  or  more  females  in  addition  to  the 
officer  having  her  in  charge. 


STATE  INSTITUTIONS  FOE  WOMEN 
AND  GIELS 


Names  and  Locations  of  House  of 
Refuge  and  Reformatory  for  Women. — 
The  house  of  correction  for  women  located 
at  Albion  is  continued  and  shall  be  known 
as  the  Western  House  of  Refuge  for 
Women.  The  reformatory  for  women  lo- 
cated at  Bedford  is  also  continued  and 
shall  be  known  as  the  New  York  State 
Eeformatory  for  Women.  The  House  of 
Refuge  for  Women  at  Hudson  shall  be  con- 
tinued as  the  New  York  State  Training 
School  for  Girls.  No  female  over  the  age 
of  sixteen  years  shall  be  committed  to  the 
New  York  State  Training  School  for  Girls. 

Commitments;  Papers  Furnished  by 
Committing  Magistrate. — 1.  A  female  be- 
tween the  ages  of  fifteen  and  thirty  years, 
convicted  by  any  court  or  magistrate  of 
petit  larceny,  vagrancy  under  subdivision 
three  or  four  of  section  eight  hundred  and 
eighty-seven  of  the  code  of  criminal  pro- 
cedure, habitual  drunkenness,  of  being  a 

158 


STATE  INSTITUTIONS  159 

common  prostitute,  or  frequenting  dis- 
orderly houses  or  houses  of  prostitution, 
or  of  a  misdemeanor,  and  who  is  not  in- 
sane, or  mentally  or  physically  incapable 
of  being  substantially  benefited  by  the  dis- 
cipline of  either  of  such  institutions,  may 
be  sentenced  and  committed  to  the  West- 
ern House  of  Eefuge  for  Women  at  Albion 
or  the  New  York  State  Reformatory  for 
Women  at  Bedford,  to  be  there  confined 
under  the  provisions  of  law  relating  to 
such  institution.  Such  commitments  shall 
not  be  for  a  definite  term,  but  any  such 
female  may  be  paroled  or  discharged  at 
any  time  after  her  commitment  by  the 
board  of  managers  of  such  institution,  but 
shall  not  in  any  case  be  detained  longer 
than  three  years.  Such  commitments  to 
the  Western  House  of  Refuge  for  Women 
at  Albion  shall  be  from  the  fourth,  fifth, 
sixth,  seventh  and  eighth  judicial  dis- 
tricts ;  to  the  New  York  State  Reformatory 
for  Women  at  Bedford,  from  the  first,  sec- 
ond and  third  judicial  districts. 

2.  The  board  of  managers  of  each  such 
institution  shall  furnish  the  several  county 
clerks  of  the  State  with  suitable  blanks 
for  the  commitment  of  women  thereto. 
Such  county  clerks  shall  immediately 
notify  the  magistrates  of  their  respective 
counties  of  the  reception  of  such  blanks, 


160     WOMAN  AND  NEW  YOEK  LAW 

and  that  upon  application  they  will  be  fur- 
nished to  them. 

3.  The  magistrate  committing  a  female 
pursuant  to  this  section  shall  immediately 
notify  the  superintendent  of  the  institu- 
tion to  which  the  commitment  is  made  of 
the  conviction  of  such  female,  and  shall 
cause  a  record  to  be  kept  of  the  name,  age, 
birthplace,  occupation,  previous  commit- 
ments, if  any,  and  for  what  offenses;  the 
last  place  of  residence  of  such  female,  and 
the  particulars  of  the  offense  for  which 
she  is  committed.    A  copy  of  such  record 
shall  be  transmitted,  with  the  warrant  of 
commitment,  to  the  superintendent  of  such 
institution,  who  shall  cause  the  facts  stated 
therein,  and  such  other  facts  as  may  be 
directed  by  the  board  of  managers,  to  be 
entered  in  a  book  of  record. 

4.  Such  magistrate  shall,  before  com- 
mitting any  such  female,  inquire  into  and 
determine  the  age  of  such  female  at  the 
time  of  commitment,  and  her  age  as  so  de- 
termined shall  be  stated  in  the  warrant. 
The  statement  of  the  age  of  such  female 
in  such  warrant  shall  be  conclusive  evi- 
dence as  to  such  age,  in  any  action  to  re- 
cover damages  for  her  detention  or  im- 
prisonment under  such  warrant,  and  shall 
be  presumptive  evidence  thereof  in  any 
other  inquiry,    action   or  proceeding   re- 
lating to  such  detention  or  imprisonment. 


STATE  INSTITUTIONS  161 

Return  of  Females  Improperly  Com- 
mitted.— Whenever  it  shall  appear  to  the 
satisfaction  of  the  board  of  managers  of 
any  such  institution,  that  any  person  com- 
mitted thereto  is  not  of  proper  age  to  be 
so  committed  or  is  not  properly  committed, 
or  is  insane  or  mentally  incapable  of  being 
materially  benefited  by  the  discipline  of 
any  such  institution,  such  board  of  man- 
agers shall  cause  the  return  of  such  female 
to  the  county  from  which  she  was  so  com- 
mitted. Such  female  shall  be  so  returned 
in  the  custody  of  one  of  the  persons  em- 
ployed by  such  boards  of  managers  to  con- 
vey to  such  institutions  women  committed 
thereto,  who  shall  deliver  her  into  the  cus- 
tody of  the  sheriff  of  the  county  from 
which  she  was  committed.  Such  sheriff 
shall  take  such  female  before  the  magis- 
trate making  the  commitment,  or  some 
other  magistrate  having  equal  jurisdiction 
in  such  county,  to  be  by  such  magistrate 
resentenced  for  the  offense  for  which  she 
was  committed  to  any  such  institution  and 
dealt  with  in  all  respects  as  though  she 
had  not  been  so  committed.  The  costs  and 
expenses  of  the  return  of  such  female, 
necessarily  incurred  and  paid  by  any  such 
board  of  managers,  shall  be  a  charge 
against  the  county  from  which  such 


162     .WOMAN  AND  NEW  YOKK  LAW 

female  was  committed,  to  be  paid  by  such 
county  to  such  board  of  managers  in  the 
same  manner  as  other  county  charges  are 
collected. 

Transfers  to  Other  Institutions. — If  at 
any  time  there  shall  be  more  inmates  in 
any  one  of  such  institutions  than  can  be 
properly  cared  for  therein,  the  board  of 
managers  shall  so  inform  the  state  board 
of  charities.  The  state  board  of  charities 
may  thereupon  authorize  and  direct  the 
transfer  of  such  excess,  or  any  part  of  such 
excess  of  inmates  to  such  one  of  the  other 
houses  of  refuge  or  state  reformatories  as 
the  state  board  of  charities  may  designate. 
The  said  board  of  managers  shall  there- 
upon transfer  to  such  other  institution 
such  number  of  inmates,  preferably  those 
last  received  by  such  institution.  Such 
transfers  shall  be  made  as  follows:  The 
board  of  managers  shall  advise  the  super- 
intendent of  the  institution  so  designated 
of  the  number  to  be  so  transferred,  and 
this  officer  shall  cause  them  to  be  taken  to 
such  institution  and  receive  and  keep  them 
according  to  their  sentences  respectively, 
the  same  as  if  they  had  been  originally 
sentenced  thereto.  With  the  inmates  so 
transferred  there  shall  be  furnished  certi- 
fied copies  of  their  sentences  and  commit- 
ments. 


STATE  INSTITUTIONS  163 

Disposition  of  Children  of  Women  so 
Committed. — If  any  woman  committed  to 
any  such  such  institution,  at  the  time  of 
such  commitment,  is  a  mother  of  a  nursing 
child  in  her  care  under  one  year  of  age,  or 
is  pregnant  with  child  which  shall  be  born 
after  such  commitment,  such  child  may 
accompany  its  mother  to  and  remain  in 
such  institution  until  it  is  two  years  of 
age  and  must  then  be  removed  therefrom. 
The  board  of  managers  of  any  such  insti- 
tution may  cause  such  child  to  be  placed 
in  any  asylum  for  children  in  this  State 
and  pay  for  the  care  and  maintenance  of 
such  child  therein  at  a  rate  not  to  exceed 
two  and  one-half  dollars  a  week,  until  the 
mother  of  such  child  shall  have  been  dis- 
charged from  such  institution,  or  may 
commit  such  child  to  the  care  and  custody 
of  some  relative  or  proper  person  willing 
to  assume  such  care.  If  such  woman,  at 
the  time  of  such  commitment,  shall  be  the 
mother  of  and  have  under  her  exclusive 
care  a  child  more  than  one  year  of  age, 
which  might  otherwise  be  left  without 
proper  care  or  guardianship,  the  magis- 
trate committing  such  woman  shall  cause 
such  child  to  be  committed  to  such  asylum 
as  may  be  provided  by  law  for  such  pur- 
poses, or  to  the  care  and  custody  of  some 
relative  or  proper  person  willing  to  assume 
such  care. 


164     WOMAN  AND  NEW  YOEK  LAW 

Conveyance  of  Women  Committed. — The 

board  of  managers  of  each  of  such  institu- 
tions shall  employ  suitable  persons,  to  be 
known  as  marshals,  to  convey  from  the 
place  of  conviction  to  such  institution  all 
women  legally  committed  thereto,  and 
such  marshals  shall  have  the  power  and 
authority  of  deputy  sheriffs  in  respect 
thereto.  All  expenses  necessarily  incurred 
in  making  such  conveyance  shall  be  paid 
by  the  treasurer  of  the  board  of  managers. 
In  case  of  the  commitment  of  a  woman 
who,  at  the  time  thereof,  is  the  mother  of 
a  nursing  child  or  is  pregnant,  the  board 
of  managers  shall  designate  a  woman  of 
suitable  age  and  character  to  accompany 
the  person  so  committed,  along  with  the 
officer  or  representative,  authorized  in  this 
section  to  be  employed  by  such  managers. 
Detentions  and  Rearrests  in  Case  of  Es- 
capes.— The  board  of  managers  of  any 
such  institution  may  detain  therein,  under 
the  rules  and  regulations  adopted  by  them, 
any  female  legally  committed  thereto,  ac- 
cording to  the  terms  of  the  sentence  and 
commitment,  and  conditionally  discharge 
such  female  at  any  time  prior  to  the  ex- 
piration of  the  term  of  commitment.  If  an 
inmate  escape  or  be  conditionally  dis- 
charged from  any  such  institution,  the 
board  of  managers  may  cause  her  to  be 


STATE  INSTITUTIONS  165 

rearrested  and  returned  to  such  institu- 
tion, to  be  detained  therein  for  the  unex- 
pired  portion  of  her  term,  dating  from  the 
time  of  her  escape  or  conditional  dis- 
charge. A  person  employed  by  the  board 
of  managers  of  any  such  institution  to 
convey  to  such  institution  women  com- 
mitted thereto  may  arrest,  without  a  war- 
rant, an  escaped  inmate  in  any  county  of 
this  State,  and  shall  forthwith  convey  her 
to  the  institution  from  which  she  escaped; 
and  a  magistrate  may  cause  an  escaped  in- 
mate to  be  arrested  and  held  in  custody, 
until  she  can  be  removed  to  such  institu- 
tion, as  in  the  case  of  her  first  commitment 
thereto.  A  person  conditionally  dis- 
charged from  any  such  institution  may  be 
arrested  and  returned  thereto,  upon  a  war- 
rant issued  by  its  president  and  secretary. 
Such  warrant  shall  briefly  state  the  reason 
for  such  arrest  and  return,  and  shall  be 
directed  and  delivered  to  a  person  em- 
ployed by  such  board  of  managers  to  con- 
vey to  such  institutions  women  committed 
thereto,  and  may  be  executed  by  such  per- 
son in  any  county  of  this  State. 

Employment  of  Inmates. — The  board  of 
managers  of  each  institution  shall  deter- 
mine the  kind  of  employment  for  women 
committed  thereto  and  shall  provide  for 
their  necessary  custody  and  superintend- 


166     WOMAN  AND  NEW  YORK  LAW 

ence.  The  provisions  for  the  safe  keeping 
and  employment  of  such  women  shall  be 
made  for  the  purpose  of  teaching  such 
women  a  useful  trade  or  profession  and 
improving  their  mental  and  moral  condi- 
tion. Such  board  of  managers  may  credit 
such  women  with  a  reasonable  compensa- 
tion for  the  labor  performed  by  them,  and 
may  charge  them  with  the  necessary  ex- 
penses of  their  maintenance  and  discipline, 
not  exceeding  the  sum  of  two  dollars  per 
week.  If  any  balance  shall  be  found  to  be 
due  such  women  at  the  expiration  of  their 
terms  of  commitment,  such  balance  may  be 
paid  to  them  at  the  time  of  their  dis- 
charge. To  secure  the  safe  keeping,  obedi- 
ence and  good  order  of  the  women  com- 
mitted to  any  such  institution,  the  super- 
intendent thereof  has  the  same  power  as 
to  such  women  as  keepers  of  jails  and 
penitentiaries  possess  as  to  persons  com- 
mitted to  their  custody. 

Clothing  and  Money  to  be  Furnished 
Discharged  Inmates. — The  board  of  man- 
agers of  any  such  institution  may,  in  their 
discretion,  furnish  to  each  inmate  of  such 
institution  who  shall  be  discharged  there- 
from, necessary  clothing  not  exceeding 
twelve  dollars  in  value,  or  if  discharged 
between  the  first  day  of  November  and  the 
first  day  of  April  to  the  value  of  not  ex- 


STATE  INSTITUTIONS  167 

ceeding  eighteen  dollars,  and  ten  dollars 
in  money,  and  a  ticket  for  the  transporta- 
tion of  one  person  from  such  institution  to 
the  place  of  the  conviction  of  such  inmate, 
or  to  such  other  place  as  such  inmate  may 
designate,  at  no  greater  distance  from 
such  institution  than  the  place  of  convic- 
tion. 

NEW  YORK  STATE  WOMAN'S  BELIEF  CORPS 
HOME 

Board  of  Managers. — The  present  board 
of  managers  is  hereby  continued,  the  terms 
of  office  of  three  thereof  to  expire  each 
year.  All  appointments  except  to  fill 
vacancies  in  said  board  shall  be  for  six 
years  and  shall  be  made  by  the  governor 
with  the  advice  and  consent  of  the  senate. 
A  majority  of  the  board  of  managers  shall 
be  appointed  from  the  members  of  the 
grand  army  of  the  republic  of  the  depart- 
ment of  New  York  and  the  women's  relief 
corps,  auxiliary  to  the  grand  army  of  the 
republic,  department  of  New  York.  When- 
ever a  vacancy  occurs  in  said  board  after 
the  expiration  of  a  term  of  office  or  by 
resignation  or  removal  or  otherwise,  the 
governor  shall  appoint  a  resident  of  the 
State  to  fill  such  vacancy,  but  when  an  ap- 
pointment shall  be  made  to  fill  an  unex- 


168  WOMAN  AND  NEW  YORK  LAW 

pired  term,  the  governor  shall  so  indicate 
at  the  time  of  making  the  appointment, 
and  the  person  so  appointed  shall  hold 
office  only  until  the  close  of  the  unexpired 
term,  and  appointments  shall  be  so  made 
that  there  will  be  at  all  times  six  women 
and  three  men  as  members  of  said  board. 
Admission  to  Home. — Every  honorably 
discharged  soldier  or  sailor  who  served  in 
the  army  or  navy  of  the  United  States,  for 
a  period  not  less  than  ninety  days,  during 
the  war  of  the  rebellion,  and  who  shall 
have  been  a  resident  of  this  State  for  one 
year  next  preceding  the  application  for 
admission,  and  the  wife,  widow  and 
mother  of  any  such  honorably  discharged 
soldier  or  sailor,  and  army  nurses  who 
served  in  said  army  or  navy  and  whose 
residence  was  at  the  time  of  the  com- 
mencement of  such  service  or  whose 
residence  shall  have  been  for  one  year 
next  preceding  his  or  her  application 
for  admission  to  said  home,  within  the 
State  of  New  York,  and  who  shall  need 
the  aid  or  benefit  of  said  home  in  conse- 
quence of  physical  disability  or  other 
cause  within  the  scope  of  the  regulations 
of  the  board,  shall  be  entitled  to  admission 
to  said  home,  after  the  approval  of  the 
application  by  the  board  of  managers  and 
subject  to  the  conditions,  limitations  and 


STATE  INSTITUTIONS  169 

penalties  prescribed  by  the  rules  and  reg- 
ulations adopted  by  said  board.  Pro- 
vided, however,  said  soldier  or  sailor  shall 
be  a  married  man  and  shall  be  accom- 
panied or  attended  by  his  wife  during  the 
time  he  may  be  an  inmate  of  said  home, 
but  no  wife  or  widow  of  a  soldier  or  sailor 
shall  be  admitted  as  an  inmate  of  said 
home  unless  due  and  sufficient  proof  is 
presented  of  her  marriage  to  such  soldier 
or  sailor  at  least  fifteen  years  prior  to  the 
date  of  such  application. 

Saint  Saviour's  Sanitarium. — The  cor- 
poration known  as  Saint  Saviour's  Sani- 
tarium, now  established  and  existing  in 
the  city  of  New  York,  for  the  reception 
and  reformation  of  inebriate  women,  is 
hereby  authorized  and  empowered  to  re- 
ceive all  such  females  as  its  trustees  shall 
deem  suitable  subjects  for  its  care,  who 
may  voluntarily  surrender  themselves,  or 
who  may  be  committed  to  its  custody  in 
the  manner  hereinafter  provided,  and  to 
retain  such  females  in  its  custody  so  long 
as  may  be  necessary  in  the  judgment  of 
said  trustees  for  treatment  and  reforma- 
tion, not  exceeding  one  year,  or  until  dis- 
charged therefrom  as  hereinafter  pro- 
vided. 

Commitment;  Certificate. — Any  judge  of 
a  court  of  record  in  the  county  or  district 


170  WOMAN  AND  NEW  YOEK  LAW 

where  an  alleged  inebriate  female  resides, 
may  commit  such  female  to  said  sani- 
tarium in  the  manner  hereinafter  provided 
upon  a  proper  application  and  upon  the 
consent  in  writing  of  the  trustees  thereof, 
signed  by  their  superintendent  or  execu- 
tive officer,  and  upon  the  certificates  in 
writing  of  two  physicians,  under  oath, 
showing  that  such  female  is  over  the  age 
of  eighteen  years  and  is  incapable  or  unfit 
to  properly  conduct  herself  or  her  own 
affairs,  or  is  dangerous  to  herself  or  others 
by  reason  of  habits  of  periodical,  frequent 
or  constant  drunkenness  induced  either  by 
the  use  of  alcoholic  or  vinous  or  other 
liquors,  or  opium,  morphine  or  other  nar- 
cotic or  intoxicating  or  stupefying  sub- 
stance. But  it  must  appear  from  each 
such  certificate  that  the  physician  exe- 
cuting the  same  is  a  graduate  of  some  in- 
corporated medical  college,  and  is  a  per- 
manent resident  of  the  State,  and  has  been 
in  the  actual  practice  of  his  profession  for 
at  least  three  years,  and  it  must  also  ap- 
pear upon  the  face  of  such  certificate  that 
the  physican  executing  the  same  has  made 
a  personal  examination  of  the  female 
alleged  to  be  an  inebriate,  and  that  such 
examination  has  been  made  within  twenty 
days  prior  to  the  application  for  the  com- 
mitment. 


STATE  INSTITUTIONS  171 

Application  for  Commitment;  Who  May 
Make;  Proceedings  Upon. — Any  person 
with  whom  an  alleged  inebriate  female 
resides,  or  the  husband,  father,  mother, 
brother  or  sister,  or  the  child  of  any  such 
female,  may  apply  to  any  such  judge  for 
the  commitment  of  such  female,  by  pre- 
senting a  verified  petition  containing  a 
statement  of  the  facts  upon  which  the  alle- 
gation of  inebriety  is  based  and  by  reason 
of  which  the  application  is  made.  Such 
petition  shall  be  accompanied  by  the  cer- 
tificates of  the  physicians  and  the  consent 
of  the  trustees  as  prescribed  in  the  pre- 
ceding section.  Notice  of  such  applica- 
tion shall  be  served  personally,  at  least  one 
day  before  making  such  application,  upon 
the  person  alleged  to  be  an  inebriate.  The 
judge  to  whom  the  application  is  made 
may  dispense  with  such  personal  service, 
or  may  direct  substituted  service  to  be 
made  upon  some  person  to  be  designated 
by  him,  but  he  shall  state  in  a  certificate 
to  be  attached  to  the  petition  his  reasons 
for  dispensing  with  personal  service  of 
such  notice,  and  if  substituted  service  is 
directed,  he  shall  state  the  name  of  the 
person  upon  whom  such  substituted  serv- 
ice is  to  be  made.  The  judge  to  whom 
such  application  is  made  may,  if  no  de- 
mand is  made  for  a  hearing  in  behalf  of 


the  alleged  inebriate,  proceed  to  determine 
the  question  of  inebriety,  and  if  satisfied 
that  the  alleged  inebriate  is  a  suitable  sub- 
ject for  the  care  of  said  sanitarium  may 
forthwith  commit  her  to  said  sanitarium. 
Such  judge  may,  in  his  discretion,  require 
other  proofs  in  addition  to  the  petition 
and  certificates  of  the  physicians.  Upon 
the  demand  of  such  alleged  inebriate  or 
of  any  relative  or  friend  in  her  behalf,  the 
judge  shall,  or  he  may  upon  his  own  mo- 
tion, issue  an  order  directing  a  hearing  of 
such  application  before  him  at  a  time  not 
more  than  five  days  from  the  date  of  such 
order,  which  shall  be  served  upon  the 
alleged  inebriate  and  upon  the  party 
making  the  application  and  upon  such 
other  persons  as  the  judge  in  his  discre- 
tion may  name.  Upon  the  day  fixed  by 
such  order,  or  upon  such  other  day  to 
which  the  proceeding  shall  be  regularly 
adjourned,  he  shall  hear  the  testimony  in- 
troduced by  the  parties  and  examine  the 
alleged  inebriate,  if  deemed  advisable,  in 
or  out  of  court,  and  render  a  decision  in 
writing  as  to  the  inebriety  of  such  female. 
If  he  shall  determine  that  such  female  is 
an  inebriate,  he  may  forthwith  commit  her 
to  said  sanitarium.  If  such  judge  can  not 
hear  the  application,  he  may,  in  his  order 
directing  the  hearing,  appoint  a  referee 


STATE  INSTITUTIONS  173 

who  shall  hear  the  testimony  and  report 
the  same  forthwith,  with  his  opinion  there- 
on, to  such  judge,  who  shall  forthwith 
make  the  commitment  or  state  his  reasons 
in  writing  for  refusing  the  application. 
Whenever  a  commitment  is  made  under 
this  article  the  petition  of  the  applicant, 
the  certificates  of  the  physicans,  the  com- 
mitment and  all  other  papers  relating 
thereto  shall  be  filed  with  the  superintend- 
ent or  executive  officer  of  said  sanitarium. 
Appeal;  Stay. — A  female  committed 
pursuant  to  this  statute  or  any  relative  or 
friend  in  her  behalf  may,  within  thirty 
days  after  the  making  of  such  commit- 
ment, appeal  therefrom  to  a  justice  of  the 
supreme  court  other  than  the  justice  mak- 
ing the  commitment,  who  shall  cause  a 
jury  to  be  summoned  as  in  the  case  of  pro- 
ceedings for  the  appointment  of  a  com- 
mittee for  an  insane  person,  and  shall  try 
the  question  of  such  inebriety  in  the 
manner  provided  by  law  for  proceedings 
for  the  appointment  of  such  committee.  If 
the  verdict  of  the  jury  be  that  such  female 
is  an  inebriate,  the  justice  by  whom  the 
appeal  is  heard  shall  certify  that  fact  and 
shall  remand  such  female  to  the  care  and 
custody  of  the  sanitarium.  Proceedings 
under  the  commitment  shall  not  be  stayed 
pending  an  appeal  therefrom,  except  upon 


174    WOMAN  AND  NEW  YOEK  LAW 

an  order  of  a  justice  of  the  supreme  court 
made  upon  notice  and  after  a  hearing,  con- 
taining a  provision  for  such  temporary 
care  or  confinement  of  the  alleged  inebri- 
ate as  may  be  deemed  necessary.  Upon 
the  refusal  of  a  judge  to  grant  an  applica- 
tion for  the  commitment  of  an  alleged 
inebriate  he  shall  state  his  reasons  for 
such  refusal  in  writing,  and  the  person 
making  the  application  may  appeal  there- 
from in  the  manner  hereinbefore  provided 
for  an  appeal  from  a  commitment,  and  the 
justice  before  whom  such  appeal  is  heard 
may  make  a  commitment  as  upon  the  orig- 
inal hearing. 

Habeas  Corpus. — Any  female  who  has 
been  committed  to  said  sanitarium  is  en- 
titled to  a  writ  of  habeas  corpus  upon  a 
proper  application  made  by  her  or  by  any 
relative  or  friend  in  her  behalf.  Upon  the 
return  of  such  writ,  the  fact  of  her  inebri- 
ety and  the  reasons  for  the  further  deten- 
tion of  such  female  in  said  sanitarium 
shall  be  inquired  into  and  determined. 
The  superintendent  or  executive  or  med- 
ical officer  in  charge  of  the  sanitarium,  or 
any  proper  person,  shall  be  sworn  and  ex- 
amined as  to  the  mental  and  physical  con- 
dition of  such  female.  If  it  appears  upon 
such  hearing  that  such  female  may  prop- 
erly  be  discharged,  the  judge  before  whom 


STATE  INSTITUTIONS  175 

the  hearing  is  had  shall  so  direct;  but  if 
it  shall  appear  that  the  condition  of  such 
female  is  such  as  to  render  further  treat- 
ment desirable,  he  shall  remand  her  to  the 
care  and  custody  of  said  sanitarium. 

House  of  the  Good  Shepherd. — The  cor- 
poration known  as  the  House  of  the  Good 
Shepherd,  now  established  and  existing  in 
the  city  of  New  York,  is  hereby  authorized 
and  empowered  to  receive  and  retain  in  its 
custody  all  such  females  as  its  trustees 
shall  deem  suitable  subjects  for  its  care 
who  may  voluntarily  surrender  themselves 
or  who  may  be  committed  to  its  custody  in 
the  manner  and  for  the  term  hereinafter 
provided,  or  for  so  much  of  such  term  as 
may  be  necessary,  in  the  judgment  of  said 
trustees,  for  treatment  and  reformation. 

Commitment;  Certificate;  Term. — Any 
judge  or  justice  of  a  court  of  record  in  the 
county  or  district  where  an  alleged  inebri- 
ate female  resides  may  commit  such 
female  to  such  house  upon  the  consent,  in 
writing,  of  the  trustees  thereof,  signed  by 
the  reverend  mother  superintendent  or  ex- 
excutive  officer  of  said  house,  and  upon 
the  certificate  in  writing  of  two  physicians 
under  oath,  showing  that  such  female  is 
over  the  age  of  eighteen  years  and  is  in- 
capable or  unfit  to  properly  conduct  her- 
self or  her  own  affairs  or  is  dangerous  to 


176  WOMAN  AND  NEW  YORK  LAW 

herself  or  others  by  reason  of  habits  of 
periodical,  frequent  or  constant  drunken- 
ness, induced  either  by  the  use  of  alco- 
holic, vinous  or  other  liquors,  or  opium, 
morphine  or  other  narcotic  or  intoxicating 
or  stupefying  substance.  But  it  must  ap- 
pear from  such  certificate  that  every 
physician  executing  the  same  is  a  grad- 
uate of  some  incorporated  medical  college 
and  is  a  permanent  resident  of  the  State 
and  has  been  in  the  actual  practice  of  his 
profession  for  at  least  three  years,  and  it 
must  also  appear  on  the  face  of  such  cer- 
tificate that  the  physicians  executing  the 
same  have  made  a  personal  examination 
of  the  female  alleged  to  be  an  inebriate, 
and  that  such  examination  has  been  had 
within  twenty  days  prior  to  the  applica- 
tion for  the  commitment.  The  judge  or 
justice  to  whom  the  consent  and  certificate 
are  presented  may  require  affidavits  to  be 
submitted  in  support  of  the  allegations 
contained  in  such  certificate,  or  may  insti- 
tute an  inquiry  to  take  proof  as  to  such 
facts  before  making  the  commitment.  No 
such  commitment  shall  be  for  a  longer 
term  than  one  year,  but  the  same  may  be 
renewed  for  a  like  term  or  terms  upon  a 
proceeding  taken  as  hereinbefore  pre- 
scribed in  the  case  of  an  original  commit- 
ment. 


STATE  INSTITUTIONS  177 

To  be  Kept  Apart  from  Other  Inmates. 
— Females  committed  to  the  House  of  the 
Good  Shepherd  pursuant  to  the  provisions 
of  the  last  two  sections  must  be  kept  sep- 
arate and  apart  from  the  other  inmates  of 
said  house. 

Right  to  Habeas  Corpus. — Nothing  here- 
in contained  shall  be  construed  to  limit  the 
right  of  the  court  to  review  by  habeas  cor- 
pus the  detention  of  any  person  committed 
under  the  last  three  sections. 

SHELTER  FOR  UNPROTECTED  GIRLS 

Authority  to  Receive  Girls.—' '  The  shel- 
ter for  unprotected  girls  "  at  Syracuse  is 
hereby  authorized  to  receive,  and  have  the 
custody  of  all  girls  committed,  surren- 
dered or  transferred  to  it  under  the  pro- 
visions of  this  article,  and  shall  have  au- 
thority by  officers  or  agents  to  restrain  or 
direct  them;  to  keep  such  girls  at  such  em- 
ployments, and  to  cause  them  to  be  in- 
structed in  such  branches  of  useful  knowl- 
edge as  shall  be  suitable  for  their  years 
and  capacities;  to  determine  their  hours 
of  labor,  study  and  rest;  to  care  for  their 
sustenance  and  health  and  to  have  general 
control  over  them. 

Commitments  To. — Any  police  justice, 
justice  of  the  peace,  or  other  committing 


178     WOMAN  AND  NEW  YORK  LAW 

magistrate  or  court  in  the  fifth,  sixth,  sev- 
enth or  eighth  judicial  district  of  this  State 
is  hereby  authorized  to  commit  to  "  The 
shelter  for  unprotected  girls  "  any  girl 
under  the  age  of  eighteen  years,  of  protes- 
tant  faith  or  parentage,  who  shall  be  taken 
before  such  committing  officer  or  court, 
and  who  may  be  committed  under  any  of 
the  provisions  of  sections  four  hundred  and 
eighty-five  and  four  hundred  and  eighty- 
six  of  the  penal  law  of  the  State  of  New 
York,  or  as  vagrants,  or  committed  on  con- 
viction of  misdemeanor.  Any  girl  so  com- 
mitted shall  be  committed  to  the  custody 
and  control  of  the  said  corporation  until 
such  girl  is  discharged  therefrom  by  the 
vote  of  a  majority  of  the  trustees  of  said 
corporation,  but  such  girl  shall  not,  in  any 
event,  or  under  any  of  the  provisions  of 
this  article,  be  detained  by  such  corpora- 
tion after  she  shall  have  arrived  at  the  age 
of  twenty  years. 

Warrant  of  Commitment. — Such  police 
justice,  justice  of  the  peace  or  other  com- 
mitting magistrate  or  court,  upon  such 
commitment  or  conviction,  shall  issue  in 
duplicate  a  warrant  to  some  police  officer 
or  constable  of  the  county  or  city  where 
the  commitment  or  conviction  occurs,  au- 
thorizing such  officer  or  constable  to  take 
in  charge  the  person  named  in  the  war- 


STATE  INSTITUTIONS  179 

rant  and  to  convey  her  to  said  institution. 
The  receipt  of  such  person  at  said  institu- 
tion shall  be  duly  indorsed  upon  said  war- 
rant by  the  matron  or  other  person  in 
charge  thereof,  which  warrant  so  indorsed 
shall  be  returned  to  said  police  justice, 
justice  of  the  peace  or  other  committing 
magistrate  or  court,  and  shall  by  him  or 
it  be  filed  in  the  office  of  the  clerk  of  the 
county  from  which  said  person  shall  have 
been  committed,  and  such  warrant  shall  be 
sufficient  and  competent  authority  for  the 
officers  of  said  institution  to  keep  and  de- 
tain the  person  therein  named.  A  dupli- 
cate of  such  warrant,  with  a  copy  of  the 
indorsement  made  upon  the  warrant  so  re- 
turned, shall  be  delivered  to  the  matron 
or  other  officer  in  charge  of  such  institu- 
tion and  shall  be  retained  by  such  institu- 
tion, and  a  substantial  transcript  of  the 
statement  of  facts  recited  therein  and 
thereon  shall  be  recorded,  or  caused  to  be 
recorded,  by  such  matron  or  other  officer 
aforesaid,  in  a  suitable  book  to  be  kept  for 
that  purpose,  which  book  shall  at  all  rea- 
sonable hours  of  the  day  be  subject  to  the 
inspection  of  any  person. 

Refusal  to  Receive  Girls. — Within  five 
days  after  the  receipt  of  any  girl  com- 
mitted as  aforesaid  to  the  said  institution, 
the  board  of  trustees  or  the  president  or 


180     WOMAN  AND  NEW  YORK  LAW 

vice-president  thereof  may,  for  good  cause, 
refuse  to  receive  at  said  institution  the 
girl  so  committed  thereto.  In  case  of  such 
refusal,  the  same  shall  be  indorsed  upon 
the  duplicate  of  the  warrant  delivered,  as 
above  provided,  to  the  matron  or  other 
officer  of  said  institution,  and  the  said 
duplicate  warrant  so  indorsed  shall  be  re- 
turned to  the  police  justice,  justice  of  the 
peace  or  other  committing  magistrate  or 
court  that  may  have  issued  the  same. 
Upon  receiving  such  refusal,  such  police 
justice,  justice  of  the  peace,  or  other  com- 
mitting magistrate  or  court,  shall  issue  to 
some  police  officer  or  constable  a  warrant 
requiring  the  said  officer  or  constable  to 
take  the  girl,  so  refused  admission,  from 
the  institution,  and  to  bring  her  before 
him  or  it,  whereupon  the  said  police  jus- 
tice, justice  of  the  peace,  or  other  commit- 
ting magistrate  or  court,  shall  proceed  to 
sentence  or  commit  such  girl  so  brought 
before  him  or  it,  in  the  same  manner  and 
with  the  same  force  and  effect  as  if  she 
had  never  been  committed  to  such  institu- 
tion. 

Custody  of  Girl  Surrendered  by  Parent. 
— The  said  corporation  shall  be  deemed  to 
have  acquired  lawful  care  and  custody  of 
any  girl  between  the  ages  of  seven  and 


STATE  INSTITUTIONS  181 

eighteen  years,  who  shall  have  been  sur- 
rendered to  it  by  her  parents,  or  her 
parent  if  but  one  be  living,  provided  tha' 
such  surrender  is  evidenced  by  a  writing 
executed  by  such  parents  or  parent,  set- 
ting forth  the  age  and  name  of  the  said 
girl,  the  date  of  surrender,  the  term  for 
which  such  surrender  is  made,  and  ex- 
pressly vesting  in  such  corporation  all  the 
power  and  control  over  the  girl  possessed 
by  such  parents  or  parent,  and  which 
writing  shall  contain  an  affidavit  made  by 
the  parents  or  parent  stating  that  the 
statements  contained  therein  are  true. 

Transfers  from  Charitable  Institutions. 
— The  corporate  authorities  of  any  chari- 
table institution  located  within  the  fifth, 
sixth,  seventh  or  eighth  judicial  district  of 
this  State,  now  or  hereafter  having  the 
lawful  care  or  custody  of  any  girl  not  less 
than  seven  years  of  age,  not  awaiting  trial 
nor  under  sentence,  for  a  term  of  years, 
for  crime,  may,  with  the  consent  of  said 
corporation,  transfer  and  assign  such  cus- 
tody and  care  to  said  corporation,  upon 
such  terms  as  the  directors  of  such  institu- 
tion and  said  corporation  may  agree  upon; 
but  such  transfer  and  assignment  shall  be 
evidenced  by  a  writing  officially  executed 
by  such  institution,  and  shall  be  made  only 


182     WOMAN  AND  NEW  YOKE  LAW 

on  the  approval  thereof  by  the  county 
judge  of  the  county  in  which  such  institu- 
tion is  situated,  indorsed  on  said  writing. 

Statements  as  to  Age. — In  all  cases 
under  this  article  where  any  girl  shall 
come  under  the  care,  custody  or  control  of 
said  corporation,  the  age  of  such  girl  shall, 
so  far  as  said  corporation  is  concerned,  be 
prima  facie  deemed  and  taken  to  be  cor- 
rect as  stated  in  the  written  surrender  of 
the  parents  or  parent,  or  the  order  of  com- 
mitment by  the  committing  magistrate, 
court  or  officer,  or  in  the  transfer  by  the 
authorities  of  any  charitable  institution; 
and  in  case  of  any  omission  to  state  the 
age  of  any  girl  in  any  such  cases,  the 
trustees  of  said  corporation  shall,  as  soon 
as  may  be  after  such  girl  may  be  received 
by  them,  ascertain  her  age  by  the  best 
means  in  their  power,  and  cause  the  same 
to  be  entered  in  the  book  to  be  designated 
by  them  for  the  purpose;  and  the  age  of 
such  girl  thus  ascertained  shall  be  prima 
facie  deemed  and  taken  to  be  the  true  age 
of  such  girl. 

Support  of  Inmates. — Each  board  of 
supervisors  of  the  several  counties  within 
the  fifth,  sixth,  seventh  and  eighth  judicial 
districts  of  this  State  is  hereby  authorized 
and  directed  to  audit  the  bills  for  board- 
ing any  inmate  of  said  institution  received 


STATE  INSTITUTIONS  183 

therein  from  the  county  of  such  board  by 
virtue  of  any  of  the  provisions  of  section 
three  hundred  and  eighty-one,  at  such 
prices  as  such  board  of  supervisors  may 
deem  just  and  reasonable,  and  the  bills  so 
audited  shall  be  paid  by  the  county  treas- 
urer of  such  county.  When  any  such  bill 
is  so  audited  and  paid,  it  shall  be  appor- 
tioned by  said  board  among  the  various 
cities  and  towns  in  such  county  as  said 
board  shall  deem  equitable,  and  the 
amount  so  apportioned  to  any  city  or  town 
shall  be  reimbursed  by  such  city  or  town 
to  such  county. 

Visitations. — The  said  institution  shall 
be  subject  to  the  same  visitations,  inspec- 
tion and  supervision  as  are  now  provided 
by  law  for  the  jails,  penitentiaries  and 
prisons  of  this  State. 

Arrest  After  Conditional  Discharge. — 
Any  person  having  been  conditionally  dis- 
charged from  said  institution  may,  upon 
the  violation  of  the  condition  of  discharge, 
be  arrested  and  returned  thereto  upon  a 
warrant  issued  by  order  of  the  board  of 
trustees  of  said  institution,  signed  by  the 
secretary  and  attested  by  the  president 
thereof,  which  warrant  shall  briefly  state 
the  reasons  for  such  arrest,  and  shall  be 
directed  and  delivered  to  some  officer  or 
agent  employed  by  the  board  of  trustees 


184     WOMAN  AND  NEW  YOEK  LAW 

to  convey  to  said  institution  persons  com- 
mitted thereto,  and  when  so  signed,  at- 
tested and  delivered,  may  be  executed  by 
such  officer  or  agent  in  any  county  of  this 
State.  But  such  warrant,  before  being  so 
executed,  must  be  indorsed  by  a  magis- 
trate of  the  city,  town  or  county  in  which 
the  person  sought  to  be  arrested  may  be 
found. 

ANCHORAGE  AT  ELMIRA 

By-Laws. — The  Anchorage,  a  corpora- 
tion created  under  the  general  laws  of  this 
State  for  the  promotion  of  Christian  work 
and  the  improvement  of  the  spiritual  and 
moral  condition  of  women  who  shall  come 
under  its  care,  and  having  its  location  in 
the  city  of  Elmira,  may  make  by-laws  not 
inconsistent  with  law,  providing  for  its 
custody,  with  or  without  confinement  in 
its  buildings  in  such  city,  of  women  com- 
mitted to  it  in  pursuance  of  this  article; 
for  the  proper  care  and  maintenance,  the 
disciplinary  and  reformative  treatment 
and  probationary  release  on  parole  of  such 
women  while  so  in  its  custody;  and  for 
such  administration  of  its  affairs,  as  to  its 
trustees  may  seem  desirable,  by  an  execu- 
tive committee  to  be  composed  of  at  least 
five  of  its  trustees. 


STATE  INSTITUTIONS  185 

Approval  by  State  Board  of  Charities; 
Certificate. — The  by-laws  of  such  corpora- 
tion may  be  submitted  to  the  state  board 
of  charities  for  approval.  The  state  board 
of  charities  may  make  and  annex  to  a  copy 
of  such  by-laws  its  certificate  in  writing, 
dated  the  day  when  made,  to  the  effect 
that  it  approves  such  by-laws  and  that  one 
or  more  members  of  such  board  within 
thirty  days  before  the  date  of  such  certifi- 
cate personally  inspected  the  buildings 
and  management  of  such  corporation  and 
that  such  board  is  satisfied  that  such  cor- 
poration is  properly  prepared  to  and  will 
for  at  least  one  year  thereafter  receive  into 
its  custody  and  properly  care  for  women 
committed  to  it  in  pursuance  of  this 
article. 

Inspection  by  State  Board  of  Charities. 
— If  the  state  board  of  charities  shall 
make  such  certificate  and  any  women  shall 
be  committed  to  the  Anchorage  in  pursu- 
ance of  this  article,  one  or  more  of  the 
members  of  such  board  shall,  so  long  as 
any  women  so  committed  shall  remain  in 
the  custody  thereof,  annually  within  sixty 
days  before  the  expiration  of  each  year 
after  the  date  of  such  certificate,  person- 
ally inspect  the  buildings  and  management 
of  such  corporation;  and  such  board  shall 
after  such  inspection  make  a  certificate  in 


186     WOMAN  AND  NEW  YOEK  LAW 

writing  dated  as  of  the  day  upon  which  it 
is  made  either  substantially  to  the  same 
effect  as  the  first  certificate  or  substan- 
tially to  the  contrary  effect;  and  the  cer- 
tificate so  made  shall  be  filed  by  such 
board  in  each  county  clerk 's  office  in  which 
the  certificate  of  the  last  previous  year 
shall  have  been  filed.  And  after  the  filing 
of  such  certificate  substantially  contrary 
to  such  first  certificate  no  commitments 
shall  be  made  to  the  Anchorage  by  virtue 
of  this  article. 

Commitments  by  Recorder  of  Elmira. — 
During  the  period  of  one  year  after  the 
date  of  the  first  certificate  of  the  state 
board  of  charities  filed  in  the  clerk's  office 
of  Chemung  county  and  during  each  year 
after  the  date  of  the  filing  of  each  subse- 
quent certificate  of  the  state  board  of 
charities  substantially  to  the  same  effect 
as  the  first  certificate,  the  recorder  of  the 
city  of  Elmira  shall  commit  any  woman 
between  sixteen  and  thirty  years  of  age 
convicted  by  him  or  by  the  court  of  special 
sessions  held  by  him  of  being  a  prostitute 
or  of  frequenting  any  house  of  ill-fame,  or 
of  disorderly  conduct  or  of  being  a  dis- 
orderly person,  for  the  first  offense;  and 
may  commit  any  woman  actually  or  ap- 
parently under  twenty  years  of  age,  con- 
victed by  the  court  of  special  sessions  held 


STATE  INSTITUTIONS  187 

by  such  recorder  of  any  misdemeanor,  to 
the  Anchorage,  to  be  there  detained  sub- 
ject to  its  by-laws  so  approved  by  the  State 
board  of  charities  and  filed. 

Commitments  from  Other  Counties. — 
Any  magistrate  in  any  other  county  in 
which  a  certified  copy  of  such  first  certifi- 
cate of  the  state  board  of  charities  is  au- 
thorized to  be  filed  may,  if  a  certified  copy 
of  such  first  certificate  or  of  any  subse- 
quent certificate  of  the  state  board  of 
charities  to  the  same  effect  shall  be  filed 
in  such  county  during  the  period  of  one 
year  after  the  date  of  any  such  certificate, 
commit  any  woman  between  sixteen  and 
thirty  years  of  age  convicted  by  such 
magistrate  or  by  a  court  of  special  sessions 
held  by  such  magistrate  of  prostitution  or 
of  frequenting  any  house  of  ill-fame,  or  of 
disorderly  conduct  or  of  being  a  disorderly 
person  for  the  first  offense ;  and  any  woman 
actually  or  apparently  under  twenty-one 
years  of  age ;  and  any  woman  convicted  by 
the  court  of  special  sessions  held  by  such 
magistrate  of  a  misdemeanor,  to  the  An- 
chorage to  be  there  detained  subject  to 
the  rules  and  regulations  of  the  state 
board  of  charities. 

Limitation  of  Term. — No  person  com- 
mitted to  the  Anchorage  in  pursuance  of 
this  article  shall  be  deprived  of  her  liberty 


188     WOMAN  AND  NEW  YOEK  LAW 

by  virtue  of  such  commitment  for  a  longer 
period  than  such  person  might  have  been 
committed  to  a  county  jail  upon  conviction 
of  the  offense  of  which  the  conviction  was 
had  by  virtue  of  which  the  commitment 
was  made. 

Support  of  Inmates. — The  board  of 
supervisors  of  any  county  from  which 
commitments  are  authorized  to  be  made  to 
the  Anchorage  by  virtue  of  this  article 
may  contract  with  the  Anchorage  for  the 
support  of  women  committed  to  the  An- 
chorage from  such  county  and  the  amount 
payable  to  the  Anchorage,  in  pursuance  of 
such  contract  shall  be  a  county  charge 
upon  such  county. 

Change  of  By-Laws;  Disposition  of  In- 
mates on  Adverse  Certificate. — After  the 
state  board  of  charities  shall  have  ap- 
proved the  by-laws  of  the  Anchorage,  such 
by-laws  shall  not  thereafter  be  changed 
except  with  the  approval  of  such  board. 
If  the  state  board  of  charities  shall  at  any 
time  make  a  certificate  substantially  con- 
trary to  the  effect  of  such  first  certificate 
made  by  it,  such  board  of  charities  shall 
immediately  thereupon  cause  each  woman 
then  in  the  custody  of  the  Anchorage  by 
virtue  of  this  article  to  be  taken  before  a 
magistrate  or  a  court  of  special  sessions 
of  the  town,  city  or  village  from  which 


STATE  INSTITUTIONS  189 

such  woman  was  committed,  and  such 
magistrate  or  court  may  thereupon  dis- 
charge such  woman  from  such  commit- 
ment or  may  recommit  such  woman  to  the 
county  jail  of  the  county  for  a  period 
which  together  with  the  period  since  the 
date  of  the  first  commitment  shall  not  ex- 
ceed the  total  period  for  which  such 
woman  might  have  been  committed  to  jail 
upon  her  original  conviction  by  virtue  of 
which  her  commitment  to  the  Anchorage 
was  made. 

Detentions  and  Rearrests  in  Cases  of 
Escape. — The  executive  committee  of  said 
Anchorage  shall  have  power  to  cause  to  be 
detained  therein,  under  such  proper  rules 
and  regulations  as  the  board  of  trustees 
shall  provide,  any  female  so  committed 
thereto  according  to  the  terms  of  said  sen- 
tence and  commitment,  and  to  cause  the 
rearrest  in  any  county  of  this  State,  and 
return  to  said  Anchorage,  of  any  person 
who  may  have  escaped  therefrom  or  been 
conditionally  discharged  therefrom,  as 
herein  provided,  and  in  case  of  such  re- 
arrest  and  return,  to  detain  her  as  afore- 
said from  the  time  of  such  return,  for  a 
time  equal  to  the  unexpired  portion  of  her 
time  at  the  time  of  her  escape  or  condi- 
tional discharge. 


190     WOMAN  AND  NEW  YORK  LAW 

Conveyance  of  Women  Committed. — 
The  executive  committee  shall  employ 
suitable  persons  to  convey  from  the  place 
of  conviction  to  the  said  Anchorage  all 
women  duly  committed  thereto,  and  said 
persons  shall  have  the  power  and  author- 
ity of  deputy  sheriffs.  All  expenses  of  such 
conveying  shall  be  paid  by  the  treasurer 
of  the  board  of  said  Anchorage. 

Who  May  Rearrest. — In  any  case  of  the 
escape  of  any  inmate  from  said  Anchor- 
age, any  person  duly  employed  by  said 
executive  committee  to  convey  to  said 
Anchorage  women  committed  thereto, 
shall  have  power  to  arrest  such  escaped  in- 
mate in  any  county  in  this  state  without 
a  warrant,  and  forthwith  to  convey  her  to 
said  Anchorage;  and  any  magistrate  shall 
have  power  to  cause  any  such  escaped  in- 
mate to  be  arrested  and  held  in  custody 
until  she  can  be  removed  to  said  Anchor- 
age, as  in  case  of  her  first  commitment 
thereto. 

Conditional  Discharge.  —  Any  person 
committed  to  the  Anchorage  may  be  dis- 
charged therefrom  conditionally  or  other- 
wise in  the  discretion  of  the  executive 
committee,  whenever  in  the  judgment  of 
said  committee  there  is  satisfactory  evi- 
dence of  the  reformation  of  such  person, 
provided  that  in  no  case  of  sentence  for 


STATE  INSTITUTIONS  191 

a  certain  definite  period  shall  commuta- 
tion or  abridgment  of  sentence  be  made 
for  more  than  one-third  of  the  period 
specified  in  the  warrant  of  commitment 
without  the  concurrence  in  writing  of  the 
committing  magistrate,  or  of  his  successor 
in  office. 

Rearrest  After  Conditional  Discharge. 
— Any  person  having  been  conditionally 
discharged  from  said  Anchorage  may  be 
arrested  and  returned  thereto  upon  the 
warrant  of  the  executive  committee  of  said 
Anchorage,  issued  by  order  of  said  com- 
mittee, signed  and  attested  by  the  chair- 
man of  said  committee,  which  warrant 
shall  briefly  state  the  reason  for  such 
arrest  and  return,  and  shall  be  directed 
and  delivered  to  any  person  employed  by 
said  executive  committee  to  convey  to  said 
Anchorage  persons  committed  thereto,  and 
when  so  signed,  attested  and  delivered 
may  be  executed  by  such  person  in  any 
county  of  this  State. 

Papers  Furnished  by  Committing  Magis- 
trate.— It  shall  be  the  duty  of  every  jus- 
tice of  the  peace,  police  justice  or  other 
magistrate  or  court  committing  any 
woman  under  authority  given  by  this 
article  immediately  to  notify  the  superin- 
tendent of  said  Anchorage  of  such  convic- 
tion, and  to  cause  a  record  to  be  kept  of 


192     WOMAN  AND  NEW  YOEK  LAW 

the  name,  age,  birthplace,  occupation,  pre- 
vious commitment,  if  any,  and  for  what 
offenses  (and  last  place  of  residence  of 
such  woman  or  women)  so  committed  by 
them  together  with  the  particulars  of  the 
offense  charged.  A  copy  of  said  record 
shall  be  transmitted  with  the  warrant  of 
commitment  to  the  superintendent  of  said 
Anchorage,  who  shall  enter  and  keep  in  a 
book  of  record  all  these  and  such  other 
facts  as  are  by  law  required  concerning 
inmates  of  poorhouses. 

Determination  as  to  Age. — Any  court  or 
magistrate  authorized  to  commit  any 
female  to  said  Anchorage  shall  before  so 
committing  her  inquire  into  and  for  the 
purpose  of  the  case  determine  the  age  of 
such  female  at  the  time  of  such  commit- 
ment, and  her  age  as  so  determined  shall 
be  stated  in  the  warrant;  and  when  the 
year  only  is  stated,  it  shall  be  considered 
as  expiring  on  the  day  on  which  the  war- 
rant is  dated  and  the  statement  of  age  of 
such  female  so  made  in  said  warrant  of 
commitment  shall  be  conclusive  evidence 
as  to  the  age  of  said  female  in  any  action 
to  recover  damages  for  her  detention  or 
imprisonment  under  said  warrant,  and 
shall  be  presumptive  evidence  of  the  age 
of  such  female  in  any  other  inquiry,  action 
or  proceeding  relating  to  such  detention. 


STATE  INSTITUTION'S  193 

Removal  and  Resentence  of  Insubordi- 
nate Inmates. — Whenever  any  person  com- 
mitted to  such  institution  by  a  magistrate, 
court  or  justice  of  the  peace,  as  provided 
in  this  article,  shall  by  reason  of  insubor- 
dination or  other  improper  conduct,  prove, 
in  the  judgment  of  the  executive  commit- 
tee of  said  institution,  to  be  an  improper 
subject  for  care  in  said  Anchorage,  it  shall 
be  the  duty  of  the  executive  committee  of 
said  Anchorage  thereupon  to  cause  the  re- 
turn of  such  female  to  the  county  from 
which  she  was  committed  in  the  custody 
of  one  of  the  persons  employed  by  said 
executive  committee  to  convey  to  said 
Anchorage  women  committed  thereto,  who 
shall  deliver  her  into  the  custody  of  the 
sheriff  of  such  county,  to  be  by  said  sheriff 
taken  before  the  court  or  magistrate  which 
committed  her  to  said  Anchorage,  or  some 
other  court  or  magistrate  having  equal 
jurisdiction  in  such  county,  to  be  by  such 
court  or  magistrate  resentenced  for  the 
offense  for  which  she  was  committed  to 
said  Anchorage,  and  dealt  with  in  all  re- 
spects as  though  she  had  not  been  com- 
mitted to  said  Anchorage,  and  in  such  case 
all  costs  and  expenses  incurred  and  paid 
by  said  board  of  trustees  on  account  of 
such  female  so  returned  shall  be  a  county 
charge  upon  such  county  to  be  levied  and 


194     WOMAN  AND  NEW  YORK  LAW 

collected  as  other  taxes  in  said  county  and 
paid  over  to  said  board  of  trustees  and 
credited  to  the  account  to  which  such  ex- 
penses were  charged. 

Disposition  of  Children  of  Women  so 
Committed. — In  case  any  woman  com- 
mitted to  said  Anchorage  at  the  time  of 
such  commitment  shall  be  the  mother  of 
a  nursing  child  in  her  care  under  one  year 
of  age,  or  be  pregnant  with  child  which 
shall  be  born  after  such  commitment,  such 
child  may  accompany  its  mother  and  re- 
main in  said  Anchorage  until  such  time 
as  in  the  opinion  of  the  board  of  trustees 
such  child  can  properly  be  removed  there- 
from and  suitably  provided  for  elsewhere. 

Powers  of  Superintendent. — For  the  safe 
management  and  discipline  of  said  An- 
chorage the  superintendent  thereof  is  here- 
by given  and  is  required  to  exercise,  in 
regard  to  women  committed  to  said  An- 
chorage, the  same  power  as  jail  keepers 
and  constables  have  in  regard  to  persons 
committed  or  held  in  custody  of  said 
officers. 

Freedom  of  Worship. — Nothing  herein 
contained  shall  interfere  with  the  right  of 
the  freedom  of  worship  of  any  inmate  con- 
fined within  said  institution,  as  provided 
by  the  constitution  of  the  State  of  New 
York. 


REFERENCES    TO    THE    CONSOLIDATED    LAWS 

(BIRDSEYE'S,   GUMMING   &   GILBERT'S)    IN 

MATTERS  RELATING  TO  WOMEN 

PAGE 

Abandonment  of  children 3826, 3827, 3832 

Abduction  3763,  3765,  3956 

Abortion   3765, 3766 

Actions,  married  women 1037 

Adoption  of  children 1074 

Adultery  3767, 3938 

Age  for  making  wills 944 

Bastards  1032, 1075 

Births,  concealing 3837 

Breach  of  promise  to  marry 4211 

Children  of  women  in  county  jails 763 

Children  of  women  in  state  prison 4300 

Debts  of  deceased  wife 1005 

Distribution  of  estate  of  married  woman 1001 

Defilement    3852 

Divorce   1023,  5036,  5042 

DOMESTIC  RELATIONS  LAW 

Children,  effect  of  marriage  of  woman  on  guard- 
ianship    1072 

Illegitimate  children,  legitimized  by  marriage 
of  parents 1032 

Husband  and  Wife — 

joint  guardians  of  children 1066 

contract  to  dissolve  marriage  illegal 1037 

contracts  in  contemplation  of  marriage 1048 

contracts  of  wife,  husband  not  bound  by 1050 

husband's  creditors,  rights  in  Insurance  policy 

held  by  wife 1044 

conveyance  of  property  to  wife  direct 1054 

debts  of  wife  before  marriage 1050 

torts  of  wife 1056 

wages  of  wife 1057 

conveyance  of  property  directly  to  each  other.  1054 

partition  of  Joint  property 1054 

dower  or  courtesy  barred 1054 

remarriage  after  divorce 1023 

195 


196     WOMAN  AND  NEW  YOEK  LAW 

Wife—  PAGB 

right  to  carry  on  business 1057 

joint  guardian  of  children,  when 1066 

confession  of  judgment  by 1037 

contracts  of  1037 

contracts  of,  not  to  bind  husband 1037 

insurance  on  husband's  life 1044 

wages  of,  right  of  action  for 1057 

right  of  wife  to  cemetery  lots 2143 

insurance  of  husband  by  wife 2546 

wife  as  witness 3937 

Dower   6031 

EDUCATION  LAW 

Women  may  be  elected  school  commissioner. . . .  1195 

vote  at  school  district  meetings 1146 

female  employees,  regulations 1844 

MABBIAGE 

Absence  for  five  successive  years,  effect  on....  1018 

Action  to  annul 1021 

Certificate  of  marriage 1027 

Civil  contract   1027 

Consent  of  parties  necessary 1024 

Divorce,  complainant  may  remarry 1023 

Remarriage  between  parties 1023 

Imprisonment  for  life,  effect  on 1032 

Incestuous  and  void,  when 1057 

Consent  of  parent  or  guardian 1029 

Ceremony,  requisites  of 1027 

Voidable  marriages 1021 

Compulsory  marriage,  evidence  to  convict 3765 

Seduction  under  promise  of  marriage 4091 

Wills,  when  revoked  by 978 

LABOB  LAW 

Apartment  houses,  employment  of  females 3069 

Females — 

work  with  polishing  wheels  prohibited 304T 

dressing  rooms  and  toilets 3045 

hours  of  labor  of 3045 

machine   cleaning   by 3047 

prohibited  employment   3047 


LAWS  EELATING  TO  WOMEN  197 

Females —  PAGE 

seats   for 3016 

under  sixteen,  not  to  stand  constantly 3016 

factories,   employment  in 3016 

mines,  tunnels  and  quarries 3002 

seats  for  in  hotels  and  restaurants 3016 

meal  time  allowed   for 3036 

wash  rooms  ana  water  closets 3074 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 
\405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 
\  Return  this  material  to  the  library          S 

\  from  which  it  was  borrowed.          / 


UCSOUT 


000  968 


